Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.157 of 2007 With Cr.A. No.251 of 2007. Judgment reserved on: 7.7.2009/21.7.2009. Dated of Decision :31st July, 2009. ------------------------------------------------------------------------------------------------------------- 1. Cr.A. No.157 of 2007. Iqbal Singh. ……… Appellant. Versus State of H.P. …….. Respondent. For the Appellant : Mr. D.S. Dolle, Advocate. For the Respondents : Mr. R.K. Bawa, Advocate General with Mr.R.M. Bisht, Dy. Advocate General & Mr. Vikas Rathore, Dy. Advocate General. 2. Cr.A. No.251 of 2007. Joginder Pal @ Ram Lubhaya. ……… Appellant. Versus State of H.P. …….. Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?Yes. For the Appellant : Mr. Lalit Kumar Sharma, Advocate. For the Respondents : Mr. R.K. Bawa, Advocate General with Mr. R.M. Bisht, Dy. Advocate General & Mr.Vikas Rathore, Dy. Advocate General. Surinder Singh, J: Both these appeals have arisen from a common judgment, passed by the learned trial court in Sessions Trial No.36 of 2005, decided on 29.3.2007, therefore taken together for its decision. - 2 - The learned trial Court convicted and sentenced the appellant Iqbal Singh under Sections 307 and 333 of the Indian Penal Code, whereas, appellant Joginder Pal @ Ram Lubhaya was acquitted for the aforesaid offences. However, both the appellants were also convicted and sentenced under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ as under: Name of the Appellant Offence under Section Period of Sentence. Iqbal Singh Under Section 20 of NDPS Act, 1985. Rigorous Imprisonment for a period of fourteen years and fine of Rs.1,00,000/- and in default of payment fine undergo imprisonment for two years. Under Section 307 & 333 I.P.C. Rigorous Imprisonment for a period of three years and fine of Rs.2,000/- under each of the section and in default of payment of fine to undergo imprisonment for six months under each count. Joginder Pal alias Ram Lubhaya, Under Section 20 of NDPS Act, 1985. Rigorous Imprisonment for a period of fourteen years and fine of Rs.1,00,000/- and in default of payment fine undergo imprisonment for two years. Royal Enfield Motorcycle No.PB-07J-2933 pertaining to the accused Iqbal Singh was ordered to be confiscated to the State. Both the appellants have challenged their conviction and sentence for the aforesaid offences by filing their separate appeals. The prosecution case as emerges from the evidence on record can be stated thus. On 4.11.2004, at about 12.20 p.m., - 3 - PW3 HHC Bhagat Ram received a telephonic message from S.P. Mandi that two persons were on their motorcycle bearing registration No.PB-07J-2933 did not stop at Police ‘naka’ at Bindravani. Since there were lots of cases of theft of the mobile phones, a direction was given by S.P. Mandi to stop and check, the Motorcycle and also to ask from him as to why he did not stop at Police ‘Naka’. The aforesaid information was entered into the daily diary Ex.PJ at 12.20 P.M. Thereafter the police party headed by HC Kuldeep Singh of P.P. Drang put a ‘naka’ on the road nearby. Around 12.50 p.m., the police noticed the aforesaid motorcycle, to which Iqbal Singh appellant was driving on a very high speed and Joginder Pal appellant was the pillion rider. Iqbal Singh was having a black Raxine bag put on his shoulder. The police signaled them to stop, but neither they lowered the speed nor stopped the motorcycle and allegedly hit HC Kuldeep Singh intentionally. He fell down on the spot and sustained the injuries. The Motorcyclist alongwith the pillion rider fell apart on the road. Joginder Pal pillion rider managed to escape and whereas Iqbal Singh sustained minor injuries and was apprehended on the spot. On checking his bas, HHC Bhagat Ram found “Charas” and “Poppy Husk” in two separate parcels alongwith his personal effects. HC Kuldeep Singh (PW4) was immediately removed to PHC Palli for his treatment in a car which came there immediately after the aforesaid accident. - 4 - PW26 ASI Baldev Singh, Incharge Police Post Drang was returning in his Motor-bike after attending the court. He was informed by HHC Hoshiar Singh on his mobile phone about the aforesaid incident. He came to the spot and found Iqbal Singh accused and HHC Bhagat Ram (PW3) on the side of the road around 2 P.M. and recorded the statement (Ex.PD) of HHC Bhagat Ram. In Ex.PD HHC Bhagat Ram stated about the above facts and further revealed that the pillion rider whose name and identity was disclosed by Iqbal Singh had fled away from the spot. Whereas Iqbal Singh appellant was having a black Raxine bag, which fell on the spot after the accident. It was checked. It contained “Charas” and another polythene envelope was containing “Poppy Husk”. His aforesaid statement was sent for registration of the case, which was recorded as FIR Ex.PZ and investigation of the case started. ASI Baldev Singh (PW26) of P.P. Drang took over the investigation and joined PW6 Bhupender, Pradhan of the Gram Panchayat, who was running a PCO and PW11 Kashmir Singh, owner of a tea stall and sweet shop, nearby. A local Photographer from the bazaar was called for. “Charas” and “Poppy Husk” both were weighed. The “Charas” was 2 K.Gs and “Poppy Husk” 200 grams. The weighing proceedings were photographed. Thereafter 50 grams of “Charas” was separated from the recovered stuff, which was divided into two parts of 25 grams each and both the sample-parcels were sealed with seal impression ‘H’. Remaining - 5 - “Charas” was sealed separately with the same seal and marked as Ex.P1 and both the samples of “Charas” were marked as Ex.P2 and Ex.P3. Further out of the recovered quantity of “Poppy Husk”, two samples of 25 grams each were separated and sealed with seal impression ‘H’ and remaining bulk was also sealed with the same seal and “Poppy Husk” was marked as Ex.P4 and both the samples were marked Exts.P5 and P6. The sample of seal ‘H’ was taken on separate pieces of cloth, one of which is Ex. PE. The signatures of the witnesses were taken on the sealed parcels as well the sample parcels. The seal after its use was handed over to PW6 Bhupender. Thereafter NCB forms in triplicate were filled in and the case property was taken into possession vide memo Ex. PF, its one copy was given to Iqbal Singh accused. He was arrested and he was apprised of his grounds of arrest (Ex.PN). During the search of the said bag (Ex.P1), Patka Ex.P2, Mufflar Ex.P3 Gloves Exts. P3 and P4 were recovered, which were taken into possession vide a separate memo Ex.PG, its copy was also supplied to Iqbal Singh accused. The motorcycle aforesaid alongwith its keys and registration certificate were also taken into possession vide memo Ex.PH in the presence of the witnesses. The case property was produced before SI/SHO Om Parkash (PW21), which was resealed by him with his seal producing the English letter ‘T’. The facsimile of said seal was - 6 - also put on the NCB forms. One of such form is Ex.PAA. The sample of seal was also taken separately on a piece of cloth Ex.PAB. The case property along with documents and specimen were handed over to HHC Baldev Singh (PW15) on the same day, which was thereafter deposited in the Malkhana. A special report, the copy of which is Ex.PV was also sent to the Deputy Superintendent of Police, headquarter at Mandi, within the statutory time. HC Kuldeep Singh, who was taken to PHC Palli was examined by PW1 Dr. Dinesh Thakur. He noticed the following injuries on his person:- “(i) Abrasion on forehead, left side and hamaetoma on occipital region on right side, swelling on right cheek. Lacerated injury on mucosal surface of lower lip right central and lateral incisor teeth and socket displaced posteriorly. It suggested fracture of mandible. To rule out fracture he was advised X-ray of the skull and mandible- AP and lateral and referred to the opinion of dental surgeon and treatment. (ii) There was also an abrasion on the left leg just above two c.m. left patella and lacerated wound of 5 cm x .5 skin deep on sheen of Tibia in middle lying transversely.” In the opinion of the doctor, the injuries were fresh and were caused within few hours. The doctor issued MLC Ex.PA and referred the injured to zonal hospital Mandi. In his opinion, injury No.2 was simple in nature whereas injury No.1 was grievous, to this effect. His opinion is Ex.PA/1. - 7 - In Zonal hospital, HC Kuldeep Singh was medically examined by PW2 Dr. Bharti Sharma. He noticed the deformity of the mandible and a swelling on the right angle thereof. He got X-ray of both the sides of mandible done the skigrams are Exts.P1/1 to P1/3. On examination of the X-rays, he noticed the fracture of the body to the mandible and Condylar region. Thereafter, he referred the injured to the IGMC, Shimla for further treatment and management of injury on the mandible, which was opined to be grievous in nature as per Ex. PC. The motorcycle aforesaid was got mechanically examined from HC Brestu Ram Motor-Mechanic, his report is Ex.PO. The appointment letter of HC Kuldeep Singh Ex.PR and posting orders Ex.PS were obtained. The site plan of the place of incident Ex.PAE was also prepared. On 5.11.2004, PW15 MHC Baldev Singh proceeded on leave and handed over the charge to PW16 MHC Rajiv Kumar. On 16.12.2004, PW16 MHC Rajiv Kumar handed over two parcels i.e. one of “Charas” mark P2 and another of “Poppy Husk” (Mark P5) along with the NCB forms, copy of FIR, specimen seals ‘H’ and ‘T’, copy of the statements recorded under Section 154 of the Code of Criminal Procedure etc. vide RC No.181/4 to PW13 Constable Mehar Chand for its deposit in CTL Kandaghat for its examination. He deposited it on the same day and obtained the receipt on the ‘Road-Certificate’. On 21.4.2005, the case file for further investigation was handed over to PW22 ASI Suresh Kumar to arrest Joginder Pal - 8 - alias Ram Lubhaya the absconded accused was a dismissed constable of Punjab Police, whose particulars were supplied by Iqbal Singh to the police. On 23.4.2005, the brother of the appellant, namely Ashok Kumar identified the appellant Joginder Pal alias Ram Lubhaya to ASI Suresh Kumar and he was arrested and produced before the SHO and thereafter before the Magistrate on 26.4.2005, where after he was remanded to the judicial custody. On the receipt of report Ex.PX of the Chemical Examiner from CTL Kandaghat, on completing the investigation of this case, the challan was presented in the court for the trial of the accused-appellants. Both the accused persons were charge-sheeted for the offences as stated above including Section 15 of the Act. They pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and each of the accused persons were also examined under Section 313 of the Code of Criminal Procedure. According to Iqbal Singh accused, the police had gheraoed his motorcycle at the place of alleged occurrence, on account of which his motorcycle got imbalanced and fell down. He had denied the recovery of the contraband from him and alleged false implication in the case. He further explained that the accident took place by the sheer negligence and over doings of the police officials, who came in the middle of the road, thus - 9 - HC Kuldeep Singh sustained the injuries because of his own fault. To take revenge, a false case was foisted upon them. Joginder Pal accused took the stand that he was arrested on the basis of suspicion. He was not traveling with Iqbal Singh and denied his arrest on 23.4.2005 from Talwara as alleged. However, he admitted that earlier he was in the police department in Punjab and was dismissed from service. On consideration of the evidence on record, the learned trial court called upon the accused persons to enter into their defence. They examined DW1 ASI Ashok Kumar of PAP Bn. Jullandhar. He had brought the official record. He stated that Joginder Paul s/o late Nand Lal R/o Talwara had joined PAP 75 Bn, on 8.11.91 on compassionate ground after the death of his father. He did not know Joginder Pal personally. He also stated that in the official record he was not shown by his alias name and also as son of Gurbax Singh. DW2 Ashok is the brother of the appellant Joginder Pal. He stated that the name of his father is Nand Lal. They are the real brothers. The name of their mother is Sita Devi. Their father died in the year 1974. Joginder Pal is his elder brother and they have one sister Vijay Kumari. After the death of his father, they were residing in Talwara and living together. According to him, police took Joginder Paul from their house around 4.30 P.M. They did not make any enquiry from him. He admitted that PW25 Ashok Kumar was a class-mate of Joginder Paul accused. - 10 - At the end of trial, the appellants were convicted and sentenced by the learned trail court as stated above, which is under challenge in this appeal. On perusal of the judgment of the learned trial court, at the very outset, we are surprised that the learned trial court did not record any finding with respect to the charge under Section 15 of the NDPS Act, for the reasons best known to the learned trial court. The trial was conducted in a very cursory manner. It is not expected from a senior Judicial Officer that he omits to give findings on a charge framed under Section 15 of the NDPS Act for possessing “Poppy Husk”. We could have sent the matter back to the learned trial court to record his findings with respect to the charge aforesaid, but to save public money and time and at the same time undue harassment to the accused persons, we have decided to give our findings ourselves on the basis of the evidence adduced on record to advance the substantial justice. We have heard the learned counsel for the parties. Sh. D.S. Dole, learned counsel for accused (appellant Iqbal Singh in Cr. Appeal No.157 of 2007) submitted that on the perusal of the prosecution evidence it emerges that the motorcycle skidded off on the road, causing injuries to HC Kuldeep Singh aforesaid and the motorcyclist because of his (Kuldeep Singh’s) fault. According to him, seeing it from any angle it is not a case of attempt to murder as laid, but the circumstances show that it was pure and simple case of motor- vehicular accident which could be attributed to the police party. - 11 - He further argued that there is no evidence that accused deterred said HC Kuldeep Singh in performance of his official duties. Further according to him, there are material contradictions regarding the recovery of alleged contraband and he referred to the statement of PW3 HHC Bhagat Ram to pin- point that the prosecution case lacks probity and further argued that there has been a non-compliance of Section 50 of the NDPS Act. He also argued that on the examination of the “Charas”, the Chemical Analyst found 35.08 % resin, which is the content of “Charas”. Therefore, if this percentage is calculated on the quantity recovered, it comes less than the “commercial quantity”, thus his alternative prayer was the sentence as imposed by the learned trial court is wrong and illegal and it deserves to be reduced. He prayed that the appellant is inside the jail w.e.f. 4.11.2004, the date of incident, therefore, the sentence already undergone with a reasonable fine would meet the ends of justice. Sh. Lalit Kumar Sharma, learned counsel for the accused- appellant Joginder Pal @ Ram Lubhaya (Cr. Appeal No.251 of 2007) forcefully argued that there is not even an iota of evidence to establish the identity of said Shri Joginder Pal, who is stated to be a pillion rider on the motorcycle of Iqbal Singh, on the day of alleged incident. He also argued that appellant could not be connected with the alleged recoveries of the contraband in any manner. To support his arguments, he pointed out the relevant evidence to us, which shall be dealt with hereinafter. - 12 - Contra, Shri R.K. Bawa, learned Advocate General duly assisted by learned Deputy Advocate Generals submitted that he has no objection that in the circumstance in case the findings with respect to the offence punishable under Section 15 of the NDPS Act is recorded by this court with respect to the recovery of “Poppy Husk”. But however, while supporting the impugned judgment of conviction and sentence, the learned Advocate General argued that in the instant case the identity of appellant Joginder Pal and the recovery of contraband from both the accused stands fully proved and they deserves to be adequately punished in accordance with law. He also guardedly argued that in case this Court comes to the conclusion that it was not a case of attempt to murder and deterring the public servant in discharge of his official duties but it stands proved that the appellant Iqbal Singh was guilty of rash and negligent driving thereby causing injuries to a police official, therefore, the sentence may be modified. On considering the rival contentions of the parties and upon going through the record, in our anxious consideration, the following points are required to be answered by us:- (I) Whether the identity of appellant Joginder Pal @ Ram Lubhaya as a pillion rider with appellant Iqbal Singh at the relevant time stands proved? (II) Whether the appellant Iqbal Singh had committed an offence of attempt to murder of PW4 HC Kuldeep Singh by striking him with his - 13 - motorcycle and caused the obstructions in discharge of his official duties? (III) Whether there has been violation of Section 50 of the NDPS Act? (IV) Whether the alleged contraband was recovered from the accused persons, if so from whom? (V) Conclusion & final order. POINT NO.I. The identity of Joginder Pal in this case is in question. Ex.PD is the first statement which was made by complainant PW3 HHC Bhagat Ram to PW26 ASI Baldev Singh of Police Post Drang on the same day i.e. on 4.11.04 at 2.45 p.m. In this statement, according to Bhagat Ram, Ram Lubhaya is resident of Sector-I, near Police Station Talwara was a pillion rider as disclosed by his co-accused. On 21.4.2005 i.e. after about more than five months, the case file was handed over for further investigation to PW22 ASI Surinder Kumar to arrest Ram Lubhaya and on 23.4.2005, till then no attempt was made to arrest him. PW22 arrested him from Talwara. His identity was certified to him by his brother Ashok Kumar, who also disclosed that the said accused was also called as Joginder Pal, but this fact is denied by DW2 Ashok Kumar, but it stands proved on record that the appellant Joginder Paul was arrested by PW22 on 23.4.2005 from his residence at Talwara. Further the accused took the defence that he is not the son of Nand Lal but he is son of Gurbax Singh and admitted that - 14 - after death of his father Nand Lal who was in Punjab Police, he sought the employment in PAP 75 Battalion in the year 1991 on compassionate ground. DW1 ASI Ashok Kumar identified him as the same person Joginder Pal s/o Nand Lal and these particulars confirms the record brought by him but it did not disclose anywhere that he was also nicknamed as Ram Lubhaya. PW25 Ashok Kumar was the school mate of appellant who knew the said accused personally. According to him appellant Ram Lubhaya @ Joginder Pal is son of Gurbax Singh, residing in Sector-I, Talwara township and he was arrested by the Himachal Police in this case. Even if we admit for the argument sake that Joginder Paul @ Ram Lubhaya is the same person, who is shown to be son of Gurbax Singh, then the next question is whether he is the same person who was accompanying Iqbal Singh on his motor-bike on the day of alleged incident. For that the scrutiny of the statements of the following witnesses is necessary. PW3 HHC Bhagat Ram, the complainant stated that he only had the glimpse of the pillion rider. In his statement Ex.PD recorded under Section 154 Cr.P.C., he did not supply any physical details of the accused, who had absconded from the spot. PW4 HC Kuldeep Singh, who was injured in the said accident, stated that he did not know any of the accused prior to the aforesaid incident, but without explaining further he has stated that it was Ram Lubhaya @ Joginder Pal, who was pillion rider. He identified accused Ibal Singh, during the trial but did not - 15 - say anything about the accused Joginder Pal. Further PW5 C. Liak Chand, who was present with the police party at Drang although stated that the said accused was a pillion rider, but admitted that no identification parade (TIP) was conducted immediately after his arrest. Significantly, he stated it was the Investigating Officer, who disclosed the name of the pillion rider as Ram Lubhaya on the next day of the incident. According to PW12 HC Ram Lal, who was also present was not able to say that the other person who was a pillion rider with Iqbal Singh was appellant. Except the aforesaid evidence, we could find that no witness could say with any authority that it was Joginder Pal @ Ram Lubhaya accused, who was the pillion rider with accused Iqbal Singh on 4.11.2004. Therefore, in our considered opinion, from the aforesaid evidence, the identity of the pillion rider could not be established in accordance with law. The Point No.1 is answered accordingly. POINT NO.II. It stands established on record that the ‘Naka’ was put by the police party headed by H.C. Kuldeep Singh (PW4) on the road opposite to the police post Drang to nab the Motorcyclist, who had escaped earlier from the police ‘Naka’ at Mandi. HHC Bhagat Ram (PW3) and C. Liak Chand (PW5) were also present. This fact finds corroboration from the daily diary Ex.PJ. Police spotted the motorcycle coming from Mandi side coming on a - 16 - very high speed with a pillion rider. According to HC Kuldeep Singh the motorcyclist did not stop despite the signal given to him by them and he drove the motorcycle towards him, as a result of which, he was hit and fell on the road. The motorcyclist also fell at some distance. On sustaining the injuries, Kuldeep Singh became unconscious and thereafter he was taken to the hospital. Similar is the statement of HHC Bhagat Ram and C. Liak Chand witnesses. In fact “attempt” is an intentional preparatory action which fails in its object, which so fails through circumstances independent of the person who seeks its accomplishment. To punish the person for the ‘attempt to commit murder’, it must be an act capable of causing death in the natural and ordinary course of things and if the act complained of is not of that description, the accused cannot be convicted for the said offence. Looking at the background facts, we find that the Motorcyclist had escaped first the ‘Naka’ put at Mandi and he might have tried to escape the second ‘Naka’ for the obvious reasons, but facts remain that he was lacking the intention to commit murder by striking his motorcycle against HC Kuldeep Singh, because there was also a peril of the grievous injuries or even causing his own death by doing such an act. There is nothing on record to show whether the police had put any barricade