1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 141/2010 Decided on: March 31, 2011. Raghubir Singh & anr …Appellants. VERSUS State of HP ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellants: Mr. S.D. Gill and Ms. Prem Lata Negi, Advocates For the respondent: Mr. Rajinder Dogra, Addl. AG Surinder Singh, Judge (Oral) Appellants, herein, challenged their conviction and sentence passed by the learned trial court in Sessions case No.50-D/VII/03 decided on 23.4.2004 in the appeal, whereby each of them were sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 1,00,000/- each, with default clause, for allegedly keeping in possession 1 Kg and 735 grams of charas. 2. In short, the prosecution story is that during the intervening night of 1/2.2.2002, PW-11 ASI Duni Chand was heading the police party consisting of (PW-1) HC Kushal Kumar, (PW-2) HC Surjit Singh, (PW-3) Ram Saran, (PW-4) 2 ASI Om Parkash along with a few home guards. They were on traffic checking and had put a naka at Cantt Chowk, Macdlodganj, Dharamshala. At about 3 AM, a white Maruti van bearing registration No. HP-01-3189 came to the spot of Naka from the side of Dharamshala. Appellant Raghubir Singh was on the stearing wheel and Raj Kumar, co appellant was occupying the front seat besides the driver. Ajay Kumar and Som Dutt were on the rear seat. 3. It was stopped and checked by the police party. During checking, police discovered a bag lying near the gear lever of the van beneath a small seat in between the seat of driver and the front seat of co appellant. On its checking, police recovered 1 KG and 735 grams of charas. It was weighed with the measures and scales brought from the shop of PW-10 Sanjit Kumar, shopkeeper. Three samples of 25 grams each were separated from the recovered stuff and all the three samples were separately sealed with seal impression ‘T’ and the remaining bulk was also sealed with the same seal. The case property along with vehicle in question were taken into possession vide seizure memo Ex PW-1/A. 4. A Rukka Ex PW-11/A was sent for the registration of the case through (PW-6) Chaman Prakash, which culminated into FIR Ex PW-7/A. The site plan Ex PW-11/B was 3 prepared on the spot. The sample of seal which was used on the spot is Ex PW-9/A. Thereafter, the case property was produced before (PW-8) Inspector/SHO Surinder Singh in the police station. It is alleged that he resealed the case property, thereafter it was deposited with (PW-9) HC Kuldip Kumar in the Malkhana. 5. On 4.1.2002, two sample parcels were sent through (PW-6) Chaman Parkash for its analysis to CTL, Kandaghat. On depositing it in the laboratory, its receipt was obtained and handed over back to the MHC. 6. As per report of the analysis, Ex PW-11/C, the samples contained resin 28.55 % & 29.89%. The aforesaid samples were also having cystolithic hair and in the opinion of Chemical Analyst, both the sample parcels contained the contents of charas. After completing the investigation of the case, police presented the challan against the appellants and also the co-passengers, namely, accused Parkash Chand, Ajay Kumar and Som Dutt who were sitting in the rear seat of the vehicle. All the accused persons were accordingly charge sheeted, to which they pleaded not guilty and claimed trial. 7. To prove its case, prosecution examined its witnesses and the accused persons were also examined 4 under section 313 of Cr.PC. Their case was denial simplicitor. 8. At the end of the trial, all the accused persons were convicted and sentenced, as aforesaid. Two co- accused, namely Ajay Kumar and Som Dutt had filed Criminal Appeal No. 254/2004 against their conviction and sentence which was allowed by this Court vide its detailed judgment dated 6.7.2007, whereby they were acquitted. Thereafter, the present appellants filed their appeal after such delay and the delay was condoned, the appeal was admitted for hearing. 9. We have heard learned counsel for the parties and have carefully gone through the records. The very fact of the recovery has been doubted by the coordinate Bench (DB) of this Court in Criminal Appeal No. 254/2004 filed by the co-accused Ajay Kumar & another Vs. State of HP, decided on 6.7.2007. The relevant paras of the judgment aforesaid can be reads as under: “5. We have considered the aforesaid submissions in the light of the evidence on record. As per prosecution version, the vehicle reached the spot and was checked at 3.10 a.m. We find that in the report Ex. PW-11/A, which was sent from the spot by ASI Duni Chand (PW-11) for the registration of the case, the time of the arrival of the van, in question, at the site of the Naka has been incorporated subsequently. It appears that initially some space was left blank for filling in the time. What made us 5 to suspect the time of search written in Ex. PW-11/A, is a contradiction in the testimony of PW-5 Om Prakash, on one side, and PW-1 HC Kushal Kumar, PW-2 HC Surjeet Singh and PW-11 ASI Duni Chand, on the other. PW-5 Om Prakash stated that the vehicle reached the site of the Naka at 1.30 a.m. and Sanjeev Kumar, who was deputed to fetch scale and weights for weighing the stuff returned with the same at 1.45 a.m. The other three witnesses, named above, however, stated that the vehicle reached the spot around 3 a.m. The aforesaid contradiction in the testimony of the prosecution witnesses not only creates reasonable doubt about the correctness of the prosecution version, but also probablizes the defence plea that Charas was recovered earlier from some other vehicle and was planted in their van. Testimony of PW-5 Om Prakash suggests that the Charas was recovered from a vehicle which reached the spot at 1.30 a.m. Vehicle by which the appellants and their co-convicts were travelling reached the spot around 3 a.m., per testimony of PW-1 Kushal Kumar, PW-2 Surjeet Singh and PW-11 ASI Duni Chand. “6. The abovestated position apart, there is contradiction in the testimony of the prosecution witnesses as to the exact place in the van where the polythene bags containing the Charas were lying. According to PW-1 Kushal Kumar Charas was recovered from underneath a small seat which was in between the seat of the driver and the front seat. According to PW-2 HC Surjeet Singh, the two polythene bags containing Charas were recovered from a seat in between the two front seats near the gear box. The testimony gives the 6 impression that the two polythene bags were lying on the seat between the driver seat and the front seat. PW- 11 ASI Duni Chand has named a third place from where the two polythene bags were recovered. According to him, the polythene bags were lying hidden near the gear box under the driver’s seat.” “7. There is absolutely no evidence as to which of the five occupants of the van had the conscious possession of the Charas. There were five occupants, including the driver. The bags containing Charas, as per prosecution version, were lying in the front portion of the vehicle near the seat of the driver. It is quite probable, though not certain because of lack of evidence, that the stuff belonged to the man in driver’s seat, i.e. Raghubir Singh, who has since absconded and the other four occupants, three of whom, including appellant Som Nath, who are admittedly slate mine workers, may be innocent.” 10. In the instant case, qua the present appellants, though their case is similar in all respects as that of the acquitted co accused except the fact the bag alleged to have contained the contraband was lying beneath the small seat near the gear lever. The conscious possession of any of the appellants herein has also not been proved nor there is any evidence of resealing the case property by the SHO. He when appeared in the witness box, did not whisper even a word about it. Although, MHC stated that the case property was deposited with him but regarding resealing, his testimony is also quite shaky. Thus, for the above reasons, the appellants are also entitled for the same benefit as that of the co-accused in view of the 7 judgment of the Apex Court titled as Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746 and Akhil Ali Jehangir Ali Sayyed Vs. State of Maharashtra (2003) 2 SCC 708 on the basis of parity as the appellants are placed in the similar position as that of the other co accused, acquitted by the coordinate Division Bench of this Court. Therefore, the appellants deserve same benefit. 11. In view of the above, we accept the present appeal and set aside the impugned judgment of conviction and sentence passed by the learned trial court, acquitting the appellants by giving them the benefit of doubt. They being in jail serving out the sentence awarded by the learned trial court, are ordered to be set at liberty, if not required in any other case. (R.B.Misra), J. March, 31, 2011 (Surinder Singh),J. (sl)