IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Criminal Appeal No.580 of 2016.
Judgment reserved on: 07.12.2017.
Date of decision : 29th December, 2017.
[ENTITY] Appellant. Versus [ENTITY] Respondent. Coram
The Hon'ble Mr. Justice [ENTITY], Judge. The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting? 1No For the appellant : Mr.[ENTITY], Advocate.
For the Respondent : Mr.[ENTITY], Additional Advocate General with Mr.[ENTITY], Assistant Advocate General and Mr.[ENTITY], Law Officer. [ENTITY], Judge. The appellant has filed the instant appeal whereby he
stands convicted by the learned Special Judge-II, Kullu, H.P. on 29.11.2016 under [SECTION] of the [ACT] (for short '[ACT]') in [CASE NUMBER] whereby he has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- for the commission of offence and in default of payment of fine, the appellant was further directed to undergo simple imprisonment for one year.
2. The case of the prosecution is that on 29.08.2015 at about 1.00 a.m., a police party headed by PW-7 [ENTITY] consisting Whether the reporters of the local papers may be allowed to see the Judgment?Yes of [ENTITY] and constable [ENTITY] were on patrolling duty at place [ENTITY] Bridge, Manikaran, when they noticed the appellant coming .
from [ENTITY] Village side towards main road. He was carrying a bag under his left armpit and on seeing the police party tried to throw away the bag in Parwati river, but PW-7 [ENTITY] with the help of other police officials snatched the bag from the appellant, who was then nabbed and when searched and asked about his name, he disclosed his name [ENTITY].
r On further asking the reason to throwing away the carry bag, he could not reply satisfactorily which aroused suspicion in the mind of the police party. This, in turn, resulted in search of the carry bag wherein 'Charas' was found. Since, no independent witness was available on the spot, the Investigating Officer sent [ENTITY] to call local witnesses from the nearby area, who came back at about 1.35 a.m. and disclosed that no independent witness was available. Accordingly, the Investigating Officer by associating [ENTITY] and constable [ENTITY] weighed the recovered 'Charas' and found it to be 1 kg.630 grams. The recovered 'Charas' was again put in the same manner inside the bag and the carry bag was put in a cloth parcel which was sealed with six seal impressions of seal 'K' and after filling NCB-1 from, in triplicate, the parcel was taken into possession vide memo Ex.PW-1/A in the presence of the witnesses and copy of seizure memo was given to the appellant. The facsimile of seal 'K' was obtained on separate pieces of cloth and the seal was also embossed on NCB-1 form, in triplicate, and the seal after its use was handed over to PW-1 [ENTITY]. Photographs Ex.PW-1/D, Ex.PW-7/B and Ex.PW- 7/C were also clicked on the spot.
3. [ENTITY] was prepared on the spot by [ENTITY] which was handed over to PW-1 [ENTITY] to be sent to the Police .
Station, Kullu, for registration of case on which FIR was registered. PW- 7 [ENTITY] prepared the spot map Ex.PW-7/A and recorded the statements of the witnesses. The accused was arrested and arrest memo Ex.PW-7/D was prepared. Personal search of accused was conducted by the I.O. regarding which memo Ex.PW-7/E was prepared. On 29.08.2015, PW-5 Inspector [ENTITY], SHO, Police Station, Kullu, on receipt of rukka Ex.PW-1/B, registered FIR Ex.PW-5/A and after preparing the case file handed over the same to PW-1 [ENTITY] with the direction to hand over the same to the I.O. on the spot. On 29.08.2015 at about 12.50 P.M., the case property i.e. parcel stated to be containing 1Kg 630 grams 'Charas' sealed with six seals of seal 'K' along with NCB-1 form, in triplicate, sample seal and other relevant documents were produced before PW-5 Inspector [ENTITY], SHO, P.S., Kullu, who resealed the parcel with six seal impressions of seal 'A' and after taking sample of seal on NCB-1 form, in triplicate, and Ex.PW-5/C and also on piece of cloth Ex.PW-5/D handed over the case property along with sample seals, NCB-1 form, in triplicate, and other relevant documents to PW-2 [ENTITY], Addl. MHC, PS, Kullu, with the direction to deposit the same in the 'Malkhana' and to send the same to SFSL, [ENTITY]. On 29.08.2015, PW-2 [ENTITY] (also examined as PW-9) on receipt of one sealed cloth parcel along with NCB-1 form, in triplicate, sample seals and other relevant documents from PW-5 Inspector [ENTITY] deposited the same in the 'Malkhana' regarding which he made entry in 'Malkhana' register. On 31.08.2015, PW-2 after filling column No.12 of NCB-1 form, in triplicate sent the sealed parcel containing 'Charas' along with sample seals 'K' and 'A', NCB-1 form, in triplicate, and other relevant documents through PW-8 .
constable [ENTITY] for depositing at SFSL, [ENTITY], who accordingly deposited the same at SFSL, [ENTITY] and on his return handed over the receipt to MHC. Special report was also prepared by PW-7 [ENTITY] and handed over the same to [ENTITY], Addl.S.P., Kullu, who after making endorsement on the special report handed over r the same to his Reader PW-4 constable [ENTITY], who made entry in the relevant register. On 13.09.2015, the case property of this case along with result of SFSL was brought back by PW-6 constable [ENTITY] and deposited the same with PW-2 [ENTITY], Addl. MHC, PS, Kullu, regarding which he made entry against the specific column of 'Malkhana' register. The I.O. recorded the statements of the prosecution witnesses and on receipt of SFSL report Ex.PW-7/E and on completion presented the file before SHO, PS, Kullu, for preparing the challan and the appellant was challaned for the commission of the aforesaid offence.
4. Copies of challan were supplied to the appellant in compliance to [SECTION] [ACT] Upon consideration of challan and other relevant documents, the learned trial Court framed charge against the appellant under [SECTION] of the [ACT] to which he pleaded not guilty and claimed trial.
5. The prosecution has examined as many as nine witnesses in all. After closing the prosecution evidence, the statement of the appellant under [SECTION] [ACT] was recorded in which the appellant took the defence that 'Charas' was not recovered from him and he has been falsely implicated in this case. However, no defence evidence was led by the appellant.
6. The learned trial Court after perusing the evidence led by the prosecution and other relevant documents placed on record by it, convicted and sentenced the appellant as aforesaid.
We have heard the learned counsel for the parties and gone through the records of the case.
7. It is vehemently argued by Shri [ENTITY], learned counsel for the appellant that he has been falsely implicated in this case. He would further contend that the appellant could not have been ordered to be convicted solely on the basis of the statements of the official witnesses. Additionally, he would argue that there is grave doubt about the very presence of police party on the spot, inconsistencies who had actually written the documents, clicked the photographs, shape of the I.O. kit, the time of arrest, time of seizure of contraband and that apart the spot map was not in line with the actual position on the spot, non-association of the independent witnesses and in absence of link evidence, the appellant could not have been convicted and since the seal was not produced in the Court, therefore, the same was fatal to the case of the prosecution. He would strongly urge that there are lot of discrepancies and inconsistencies in the statements of the witnesses. He would further argue that there are inconsistencies in the version put forth by the witnesses with regard to writing of documents, more particularly, NCB-1 form, rukka and arrest memo etc. As per PW-1 [ENTITY], the I.O. had filled the NCB-1 form, in triplicate, whereas, PW-7 would claim that the same had been written by Constable [ENTITY] under his dictation and only seizure memo had been prepared by him. Further, there is discrepancy and inconsistency with regard to the actual person, who clicked the .
photographs as have been exhibited on records. As per PW-1 [ENTITY], all photographs were clicked by constable [ENTITY] with the personal camera of the I.O., but as per I.O., PW-7, the photographs were clicked by him on the mobile owned by him. He would further argue that there is contradiction relating to the I.O. kit because PW-7 would claim that the kit was in the shape of attach, whereas PW-1 [ENTITY] had stated that the kit was of blue colour cloth bag. Even the timing of arrest was contradictory inasmuch as PW-1 claimed the appellant to be in his custody as well as custody of constable [ENTITY].
8. Now, in order to test the veracity of all the aforesaid submissions of the learned counsel for the appellant, we would advert to the evidence available on record.
9. Now adverting to the statements of the prosecution witnesses. PW-1, [ENTITY] testified on oath the manner in which he on 29.08.2015 along with constable [ENTITY] and Investigating Officer [ENTITY] were on patrolling duty near [ENTITY] Bridge when at about 1.00 a.m., they noticed one person coming from [ENTITY] Bridge side towards the main road, who had tried to flee away from the spot and on suspicion came to be apprehended by the Investigating Officer and the other police officials present on the spot. He deposed that the person was wearing green colour jacket and on suspicion when it was checked by the Investigating Officer, the appellant tried to throw something which he had kept under his armpit. His name was asked by the Investigating Officer. PW-1 in his cross examination set out in detail the case of the prosecution as has been set out hereinabove and the same, therefore, need not be reproduced and, as such, we may only .
refer to the material part of his cross examination by the defence where he stated that the police party noticed the appellant coming from [ENTITY] Village when they were going towards Kasol. He further stated that it was after nabbing the appellant that he tried to throw away the bag. He stated that zip of the jacket of the appellant was half open. He admitted that [ENTITY] is visible in photograph Ex.D-1 and the house of [ENTITY] is also visible in the said photograph. He admitted that in the month of July-August there remains tourist season in Kasol-Manikaran area. He further stated that he had gone in search of the witnesses, but the house was found locked. He stated that thereafter he visited the tent situated adjacent to the spot, but nobody was found there. He admitted that he had not visited [ENTITY] Village in search of the independent witnesses as it would take 10-12 minutes from the spot. He has stated that the Investigating Officer had not given his personal search before conducting search of the bag. The 'Charas' was seized within 25 minutes after nabbing the appellant and had admitted that he had not brought the seal in the Court. He further stated that no proceedings were conducted at Police Station, Kullu in his presence as well as in presence of constable [ENTITY]. His statement had been recorded by the I.O. at Police Station, Manikaran. The witness has been subjected to lengthy cross examination, but nothing could be elicited therefrom which would render his deposition unwor thy of reliance.
10. The version put forth by [ENTITY] has been duly corroborated by PW-7 [ENTITY], who investigated the case and testified on oath the manner in which the police party headed by him had spotted the appellant and thereafter apprehended him and .
recovered the contraband and how the same thereafter was weighed, sealed, photographs of the spot were taken which finally culminated in arrest of the appellant. The information in this regard was given to his sister. Since his deposition is strictly in line with the prosecution case as narrated above, we need not go into the details of his examination in chief and would straightaway come to the cross examination.
11. In cross examination, the witness stated that the police party had come to Jari by bus. They departed from Police Post, Manikaran towards [ENTITY] Village and were standing at the main road when the appellant was noticed coming from [ENTITY] side. He admitted that Manikaran, Kasol and [ENTITY] are tourist places and there remains heavy rush of tourists. However, he denied the suggestion that village Kasol was about 100 metres away from the spot, volunteered to state that the same was at a distance of one kilometre. He further stated that no vehicle crossed the spot of occurrence and vehicles started plying after 4.00 a.m. He further stated that he had not associated any witness of the vehicle plying on the road. He further stated that [ENTITY], who had been sent to find independent witnesses had disclosed that nobody was found near Village [ENTITY], but he did not disclose to him the name of the persons whose houses had been knocked at by [ENTITY]. He admitted that no personal search of the appellant was taken by him. He stated that he did not know how [ENTITY] had gone from the spot with rukka and further stated that rukka Ex.PW-1/B was written by constable [ENTITY] under his dictation and spot and seizure memos were prepared by him. Sample seal Ex.PW-1/C was written by HC [ENTITY], whereas, arrest memo Ex.PW-7/D and personal search memo Ex. PW-7/G were written by constable [ENTITY] in .
Police Station, Kullu. He further stated that writing in columns No. 1 to 8 in NCB-1 form, in triplicate, is in the hands of [ENTITY].
12. [ENTITY] witness has not been examined, whereas, other witnesses are formal. However, brief reference to their depositions may be made.
13. PW-2 [ENTITY], who was also examined as PW-9 testified on oath the manner in which on 29.08.2015, the SHO [ENTITY] handed over to him one sealed parcel with six seal impressions of 'K' and resealed with six seal impressions 'A'. NCB-1 form, in triplicate, sample seals 'K' and 'A', copy of seizure memo and other documents were deposited with him at 1.10 p.m. of which he made entry in register No.19 at Serial No. 1834 Ex.PW-2/A and bears his signatures. He further deposed that on 31.08.2015, he sent the case property i.e. sealed parcel, NCB-1 form, in triplicate, sample seals 'K' and 'A', copy of seizure memo, copy of FIR and docket vide [CASE NUMBER] dated 31.08.2015 for depositing at SFSL, [ENTITY] through constable [ENTITY], who after depositing the same handed over the receipt to him on 01.09.2015. He also filled column No.12 of NCB-1 form, in triplicate, Ex.PW-2/B which otherwise bears his signatures. He has also proved the copy of the RC Ex.PW-2/C. He further deposed that on 13.09.2015 constable [ENTITY] brought back the case property which was sealed with six seal impressions of 'K' and 'A' each and also sealed with four seal impressions of SFSL-II and handed over the same to him with SFSL result. On 26.09.2015, he handed over the abstracts of RC and 'Malkhana' register to the Investigating Officer. He also recorded rapat No.24 Ex.PW-2/D and rapat No.23 Ex.PW-2/E. .
14. In his cross examination, the witness stated that he had not obtained the signatures of constable [ENTITY] in 'Malkhana' register while handing over the parcel to him for depositing at SFSL, [ENTITY]. He further admitted that there is no entry of case property from Police Station to Court. While being cross examined as PW-9, the witness deposed that he had issued the certificate of FIR No.208/2015 Ex.PW-9/A, G.D. Nos.23 and 24 Ex.PW-9/B which were in his hand and bore his signatures. Docket Ex.PW-9/C addressed to Director SFSL, [ENTITY] also bears signatures of ASI [ENTITY]. He identified his signatures in red circle on Ex.PW-9/C.
15. PW-3 [ENTITY] proved rapat Ex.PW-3/A entered at Police Post Manikaran which was in his hand and bore his signatures at red circle Mark -A.
16. PW-4 [ENTITY] deposed that on 29.08.2015 Addl.S.P., Shri [ENTITY] handed over special report of case FIR No. 208/2015 to him after making endorsement on the same of which he made entry in the relevant register. He proved his signatures on special report Ex.PW-4/A and also proved the signatures of the Addl. S.P. on the document Ex.PW-4/C.
17. PW-5 Inspector [ENTITY], SHO, Police Station, Kullu, stated that on 29.08.2015 rukka Ex.PW-1/B was received in the police station through [ENTITY] on which FIR Ex.PW-5/A was registered in the police station and the same was duly signed by him. He deposed that thereafter the case file was sent to the Investigating Officer for investigation. Endorsement Ex.PW-5/B also bears his signatures in red circle A. He further deposed that on the same day at about 12.15 p.m., the Investigating Officer had handed over a sealed cloth parcel sealed .
with seal impressions of seal 'K' stated to be containing 1 Kg. 630 grams 'Charas', NCB-1 form, in triplicate, seizure memo and other relevant documents to him which was duly resealed by him with six seal impressions of seal 'A'. He also stated that he filled columns No.9 to 11 of NCB-1 form, in triplicate, Ex.PW-5/C which also bears his signatures. Sample seal was also taken on separate piece of cloth which is Ex.PW-5/D. He further deposed that at about 1.10 p.m., he had handed over the sealed parcel along with sample seals 'K' and 'A', NCB-1 form, in triplicate, seizure memo and other documents to [ENTITY] for keeping the same in his custody. He had also prepared the challan of this case. In cross examination, he has denied the suggestion that Investigating Officer had not handed over the case property to him nor he resealed the same and also denied the suggestion that he had not filled up columns No.9 to 11 of NCB-1 form, in triplicate.
18. PW-6, Constable [ENTITY] has deposed that on 13.09.2015 he had handed over the case property i.e. a parcel sealed with six seal impressions of seal 'K' and 'A' each and four seals of SFSL, [ENTITY] along with result to M[ENTITY].
19. PW-8 Constable [ENTITY] has deposed that on 31.08.2015, [ENTITY], Addl. MHC, Police Station, Kullu, handed over one sealed cloth parcel stated to be containing 1Kg. 630 grams 'Charas' sealed with six seal impressions of seal 'K' and 'A' each along with sample seals 'K' and 'A', NCB-1 form, in triplicate, copy of seizure memo and other documents vide R.C. No. 299/2015 dated 31.08.2015 with the direction to deposit the same at SFSL, [ENTITY] and he deposited the same at SFSL [ENTITY] on 01.09.2015 and on returning .
handed over the receipt to MHC.
20. Now adverting to the first contention of the appellant that he has been falsely implicated, we find no merit in this contention as it would be noticed that the appellant has led no defence evidence to prove this fact and even otherwise the appellant has not been able to give any plausible explanation as to why he would be falsely implicated as the records even do not suggest that the appellant was earlier known to the Investigating Agency and, therefore, there is no question of these authorities or persons having any animosity and enmity with the appellant so as to falsely implicate him. Moreover, no suggestion was given on behalf of the appellant to any of the witnesses that he was not present at the spot and has been falsely implicated. Even otherwise, from the sequence of events of the prosecution case, it is difficult to comprehend and agree with the submissions of the appellant that he had been falsely implicated.
21. As regards, the further contention of the appellant that he could not have been ordered to be convicted solely on the basis of the testimonies of the official witnesses, we again find no merit in this contention for the simple reason that the credibility of the witnesses has to be tested on the touchstone of truthfulness. Therefore, wherever evidence of police officials after careful scrutiny inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction even in absence of the independent witnesses not supporting the case of the prosecution. No infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless .
corroborated by some independent evidence, such reliable and trustworthy statement can form the basis of conviction. (Refer: [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT]).
22. There is nothing on record to suggest or even remotely doubt the testimony of the police officials whose statements otherwise cannot be rejected solely on the ground that the witnesses happen to be the police officials and were the members of the raiding party. (Refer: [PRECEDENT]).
23. Even otherwise, mere non-association of the independent witnesses in the given facts and circumstances of the case cannot be held to be fatal to the prosecution case. After all, the prosecution cannot be asked to perform the impossible once there was no independent witness available at the relevant time, then obviously the I.O. had no other option but to associate the police officials accompanying him as witnesses.
24. As regards, the so-called discrepancies, embellishments improvements and contradictions, argued by the learned counsel for the appellant, we may observe that it is settled position of law that in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions .
amount to a contradiction, creating a serious doubt about the truthfulness of the witness and the other witnesses also make material improvements while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
25. Exaggerations per se do not render the evidence brittle. But, it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to the contradictions in material particulars i.e. go to the root of the case, materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. (Refer: [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and Dr. [PRECEDENT]).
26. Noticeably, the presence of the appellant at the spot has been proved beyond all reasonable doubt and, therefore, discrepancy with respect to the camera used for taking photographs or the kind of I.O. kit used in the case pales into insignificance and cannot be said to .
be a contradiction so serious enough to create a serious doubt in the prosecution story.
27. As regards the contention of non-production of the sample seals, it is more than settled that the same is not fatal to the prosecution case, more particularly, to the facts of the present case where the police officials have fully established their case of having sealed the case property both at the spot and police station.
28. A Co-ordinate Bench judgment of this Court in Sohan Lal vs. [ENTITY], 2016 (6) ILR (HP) 274 while dealing with the question of non-production of original seal in the Court, observed as under:
"52. Non-Production of original seal in the Court also cannot be said to be fatal, for the police officials have fully established their case of having sealed the case property, both on the spot and at the Police Station. There is no discrepancy about the number and nature of the seals. Also, there is no iota of evidence that they were either broken or tampered with. Report of the FSL (Ex.PW-13/C) is also evidently clear to such effect.
53. On this issue much reliance is placed on a decision rendered us in [ENTITY] and [ENTITY], wherein it is held that non-production of original seals does render the prosecution case to be fatal. As authors of the said decisions, we ourselves clarify them to have been rendered in the given facts and circumstances, which fact, also subsequently stands clarified by another Coordinate Bench of this Court, by relying upon a judgment rendered by the apex Court in State represented by [PRECEDENT], in [ENTITY] ([CASE NUMBER]), that the said decisions were rendered in the given facts and circumstances. Not only that, they further clarified that it was incumbent upon the accused to have established prejudice caused to him on account of non-
production of the original seal(s) in the Court, particularly when otherwise there was sufficient evidence, linking the seal affixed on the sample and embossed on the documents to be the same and the case property to be the one so recovered from the conscious possession of the accused. The Court observed that "availability of other sufficient evidence renders non production of originals seal as a technical defect, which does not vitiate trial unless prejudice is caused ".
"Purpose of production of original seal in the Court is to r compare it with seal affixed on parcels of contraband and sample in the Court so as to prove that the parcels produced in the Court are the same which were prepared and sealed on the spot at the time of recovery from the accused and also to ensure that parcel sent for chemical examination and received back were the same which were seized and sealed on the spot."
29. The findings recorded by the learned trial court are based on correct appreciation of the facts and the law and do not warrant any interference. There are no compelling circumstances which may call for interference as the reasons given by the learned court below are cogent and convincing and based on correct appreciation of law and records of the case.
30. In view of the aforesaid discussion, we find no merit in this appeal and the same is accordingly dismissed.
([ENTITY]), Judge.
29th December, 2017. ([ENTITY]), (krt) Judge.