Crl.Appeal No. 56-DB of 2005 -1- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No.56-DB of 2005 Date of decision, February 28, 2008 1. Raghbir Singh @ Bhira son of Udham Singh,r/o Village Daban Kheri, P.S. Guhla, Distt. Kaithal. 2. Jaswant Singh @ Jassa s/o Udham Singh, r/o Village Daban Kheri, P.S. Guhla, Distt. Kaithal. 3, Sadha Singh, s/o Talu Singh, r/o Village Chanchak, P.S. Guhla, Distt. Kaithal. 4. Lambar Ram, s/o Sardara Singh, r/o Village Chanchak, P.S. Guhla, Distt. Kaithal. ....... Appellants/accused Versus State of Haryana. ........ Respondent CORAM: HON'BLE MR. JUSTICE J.S. KHEHAR AND HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. K.S. Dhaliwal, Advocate for the appellants. Mr. S.K. Hooda, Sr. DAG., Haryana for the respondent. Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 17.12.2004 rendered by the Presiding Officer, Special Court, Kurukshetra vide which the accused/appellants were convicted and sentenced as under:- Name of the convict Convicted for the offence Sentence awarded Raghbir Singh u/s 25 of the Narcotic Drugs RI for a period of @ Bhira and Psychotropic Substances 12 years and to pay Act, 1985. a fine of Rs.1 lac in default of payment of fine to further undergo RI for a period of two years. Lambar Ram U/s 25 of the Narcotic Drugs RI for a period of Crl.Appeal No. 56-DB of 2005 -2- Name of the convict Convicted for the offence Sentence awarded and Psychotropic Substances 12 years and to pay Act,1985 a fine of Rs.1 lacs in default of payment of fine to further undergo RI for a period of two years. Sadha Singh U/s 25 of the Narcotic Drugs RI for a period of and Psychotropic Substances 15 years and to pay Act, 1985. a fine of Rs.1.5 lacs in default of payment of fine to further undergo RI for a period of three years. Jaswant Singh U/s 25 of the Narcotic Drugs RI for a period of @ Jassa and Psychotropic Substances 20 years and to pay Act, 1985. a fine of Rs.2 lacs in default of payment of fine to further undergo RI for a period of four years. 2. The facts, in brief, are that on the night intervening 7.11.1996 and 8.11.1996, Som Nath, Sub Inspector, Police Station, Guhla, along with ASI, Balwan Singh, Satbir Singh, Head Constable and other police officials was present at the Tilla of Village Agondh, in connection with patrol duty. At about 2.00 A.M., on 8.11.1996, Som Nath, Sub Inspector received a secret information, that the accused were transporting poppy straw, in tractor-trolley No. HNQ-3958 concealed under the fodder (parali) from the side of Village Nanhera(Punjab) and if a picket was held at the unmetaled Crl.Appeal No. 56-DB of 2005 -3- path (kacha rasta) leading from Village Nanhera to village Dabankheri,etc. they could be arrested, with the contraband. On receipt of this information, he joined Mahipal, Head Constable and other police officials of police post Ramthali, in the raiding party, and reached in the area of Village Dabankheri, on Nanhera-Dabankheri unmetaled path (kacha rasta). At about 4.15 A.M., a tractor-trolley came from the side of Punjab border after crossing Gaghar river on the unmetaled path. When the tractor-trolley reached near the picket, it was signalled to stop. It was stopped. On seeing the police party, four persons alighted from the tractor-trolley, and ran towards the fields. They were chased and identified as accused Raghbir Singh, Jaswant Singh, Sadha and Lambar, but they could not be apprehended. The driver of the tractor-trolley namely Laftain Singh, was apprehended at the spot. Eicher tractor No.HNQ 3958 along with its trolley, was checked. The trolley was found loaded with fodder (parali). DSP Sajan Kumar was informed through wireless message, about the facts of the case, and requested to reach the spot. He reached the spot, after some-time. In his presence, search of the trolley was conducted which resulted into the recovery of 17 gunny bags each containing 35 kgs. poppy straw. A sample of 200 grams was separated, from each bag. The samples and the remaining poppy straw, were converted into separate parcels, and sealed with seals bearing impressions ‘SN’, belonging to Som Nath, S.I. and 'SS' of Sajjan Singh, Dy Superintendent of Police. Specimen impressions of the seals were prepared. Seal of Som Nath, Sub Inspector, after use, was handed over to Ram Pal, ASI, whereas the seal belonging to the DSP, after use, was kept by him. The sealed parcels and the tractor-trolley bearing No. HNQ 3958 were taken into possession, vide memo Ex.PC attested by Crl.Appeal No. 56-DB of 2005 -4- the witnesses. Ruqa Ex. PE was sent to the Police Station, on the basis whereof, FIR Ex. PE/1 was registered. Laftain Singh, accused, was arrested vide arrest memo Ex. PG after apprising him of the grounds of arrest. Rough site plan Ex.PF of the place of recovery, was prepared at the spot. On return to the Police Station, the case property along with samples, was deposited with the M.H.C. The samples along with specimen seal impressions were sent to the Forensic Science Labortary, Madhuban, through Mahavir Singh, Constable. The samples sent to the Forensic Science Labortary, on analysis, were found to be of poppy straw. Accused Raghbir Singh, Jaswant Singh, Sadha and Lambar were arrested later on. After the completion of investigation, the challan was presented. 3. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by Commitment, charge under Section 15 (c)of the Narcotic Drugs and Psychotropic Substances Act, 1985 against Raghbir, Sadha and Laftain Singh, accused under Section 25 against Lambar Ram and Raghbir, accused, was framed to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Mahabir Singh, PW-1, Tara Chand, Sub Inspector, PW-2, Ishwar Singh, Head Constable, PW-3, Sajjan Singh, DSP, PW-4, Som Nath, PW-5, Head Constable, Roshan Lal, PW-6, Brij Mohan, PW-7, Shamsher Singh, Constable, PW-8, Ram Pal, PW-9, and Dr.S.K. Nagpal, Senior Scientific Officer, F.S.L., Madhuban, PW-10. The Additional Public Prosecutor for the State, tendered into evidence, the report of the Forensic Science Laboratory and thereafter closed the same. Crl.Appeal No. 56-DB of 2005 -5- 5. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was further stated by them that they had no concern, whatsoever, with the alleged recovery, and had nothing to do with the tractor-trolley in question. They were taken by the police, from their houses, and falsely involved in this case. The accused, however, examined Lakhwinder Singh, DW-1 and Buta Singh, DW-2, in their defence. 6. When the case was fixed for the remaining defence evidence of the accused, Laftain Singh, one of the accused, absented from the proceedings. His presence could not be procured, despite repeated efforts, and, ultimately, he was declared proclaimed offender, vide order dated 7.6.2004. 7. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of conviction and the order of sentence, the aforesaid appeal, was filed by the appellants/accused. 9. We have heard the learned Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 10. The learned Counsel for the appellants, at the very outset, contended that the alleged recovery was effected at about 4.00 A.M. on 8.11.1996, when there was complete darkness and, as such, the identity of Crl.Appeal No. 56-DB of 2005 -6- the accused, who allegedly ran away from the spot could not be established. He further contended that though, it was stated by the prosecution witnesses that the accused were known to the officials of the raiding party, yet besides their bald statements, in that regard, no cogent and convincing evidence was brought on record, to prove this factum. It was further contended that the identification parade, for establishing the identity of the accused, as perpetrators of crime, was required to be held, during the course of investigation but it was not held It was further contended that the alleged recovery was effected, in pursuance of the secret information, received by the concerned SHO, but the mandatory provisions of Section 42(1) and (2) of the Act, were not complied with. It was further contended that the link evidence, in the instant case, was totally incomplete. It was further contended that even the affdavits tendered by the formal witnesses, were not put to the accused, in their statements under Section 313 Cr.P.C. It was further contended that the ownership of the tractor-trolley was not proved. It was further contended that the trial Court, was wrong in recording conviction and awarding sentence. 11. On the contrary, learned Counsel for the respondent, contended that since, the accused were already known to some of the officials, who were members of the raiding party, they were identified, at the spot, though, they succeeded in running away. It was further contended that since the accused were already known to the members of the raiding party, and even their names were recorded in the Ruqa, sent from the spot, the question of holding test identification parade, did not at all arise. It was further contended by the learned Counsel for the respondent that though, the provisions of Section 42(1) and 42(2) of the Act were not complied with, Crl.Appeal No. 56-DB of 2005 -7- yet, no prejudice was caused to the accused and, as such, the merits of the case were not affected. It was further contended by the Counsel for the respondent that the link evidence, in this case, was complete. 12. Coming to the identification of the appellants/accused, as the alleged perpetrators of crime, no doubt, in the Ruqa Ex.PE, on the basis of the information supplied by the informer, the names of accused Laftain @ Bittu s/o Jeet Siongh, Raghbir Singh @ Bhira s/o Udham Singh, Jaswant Singh, @ Jassa s/o Udham Singh, Sadha Singh s/o Talu Singh and Lambar Ram s/o Sardara Ram were recorded. The informer informed the Police party that they were coming in a tractor-trolley, wherein, bags containing poppy straw were loaded. It was further recorded, in the Ruqa, that accused Bittu, Bhira, Jassa, Sadha and Lamber were known to the co-officials who were members of the raiding party. Som Nath, Sub Inspector, PW-5, in his statement, stated that he along with his co-officials identified the four accused, who ran away as Raghbir alias Bhira, Jaswant Singh alias Jassa, Sadha and Lambar. During the course of his cross examination, he was asked, as to how he knew these accused earlier. He stated that they were registered as bad characters of the Police Station, and were smugglers, and on account of that reason, he knew them earlier. He further stated that he only remained posted as SHO, Police Station Guhla from August, 1996 to 30.11.1996 i.e. for a period of three months, and earlier to that, he never remained posted in Police Station, Guhla, in which the instant case was registered. No register from the Police Station, was produced showing that the names of the accused were entered therein, as bad characters. No evidence was also brought, on record, that these accused were earlier arrested by Som Nath, Sub Inspector, in the capacity of SHO, ASI or Head Crl.Appeal No. 56-DB of 2005 -8- Constable and recovery of contraband was effected from them. Ram Pal, Sub Inspector, PW-9, another member of the raiding party, during the course of his cross examination, stated that he joined Police Station, Guhla only 2/3 months, prior to the alleged recovery. He further stated that he did not know, if he had ever joined in any investigation, against any of the accused, prior to this case. He, however,voluntarily stated that he knew them earlier. He could not disclose the source, as to how he knew these accused earlier. No other evidence was produced by the prosecution, with regard to the establishment of the identity of the accused, as alleged perpetrators of crime. From the statements of both these police officials, it could be concluded that the names of the appellants/accused, were recorded, in the Ruqa, only on the basis of the information, divulged to them, by the informer. They did not know the accused personally or otherwise, earlier. The had not arrested them, in any other case. None of the two had ever joined, in any other investigation, in any other case, against the accused. Since, no register of the Police Station, was produced, that these accused were registered, as bad characters, the bald statement of Som Nath, Sub Inspector, in this regard, could not be relied upon. Had any reliable evidence been produced, on the record, that the accused were known to both the police officials earlier, the matter would have been different. Since, these accused were not known to both these police officials, or any other police official, who was a member of the raiding party, earlier to the present occurrence, it was well nigh impossible for them, to identify them on a dark night at 4.00 A.M. on 8.11.1996. The statements of both these witnesses, regarding the identification of the appellants/accused, who allegedly ran away, are not at all reliable. In these circumstances, it was Crl.Appeal No. 56-DB of 2005 -9- imperative, on the part of the Investigating Officer, to hold identification parade during the course of investigation, to pin-point their identity, as the alleged perpetrators of crime. However, no such effort was made by the Investigating Officer. It was held in Budhsen and Another Vs. State of U.P., AIR 1970 SC 1321 that facts which establish the identity of an accused person, are relevant under Section 9. As a general rule, the substantive evidence of a witness is a statement made in the Court. The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. The evidence, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, the witness came to pick out the particular accused person, and the details of the part which the accused played, in the crime, in question, with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in the Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held, during the course of investigation, with the primary object of enabling the witnesses, to identify persons, concerned, in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses, and also to furnish evidence, to corroborate their testimony in the Court. Crl.Appeal No. 56-DB of 2005 -10- Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail, or some other place, and they make statements either express or implied that certain individuals whom they point out are persons whom they recognize as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :- “Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they happened to see him. The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable Crl.Appeal No. 56-DB of 2005 -11- way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice.” The principle of law, laid down, in the aforesaid authorities, is applicable to the facts of the instant case. The statements of Som Nath and Ram Pal, prosecution witnesses, identifying the accused, for the first time, in the Court, could not be relied upon. With a view to prove its case against the accused, it was obligatory on the prosecution to establish their identity, as perpetrators of crime beyond a reasonable doubt. No oral or documentary evidence, was produced that Jaswant and Raghbir were the owners of the tractor-trolley at the relvant time. Since, the prosecution miserably failed to establish the identity of the accused beyond a reasonable doubt, as perpetrators of crime, they were not at all connected with the present case. On re-appraisal of the evidence of Som Nath, Sub Inspector, PW-5, and Ram Pal, PW-9, it has been found that the same is not creditworthy, with regard to the identification of the accused. The trial Court was, thus, wrong in relying upon the evidence of these witnesses for holding that the identity of the accused as perpetrators of crime, was established. The submission of the Counsel for the appellants, in this regard, being correct, is accepted. 13. The link evidence, in this case, was also not complete, as would be discussed hereinafter. It was the bounden duty of the prosecution to prove through cogent and convincing evidence, beyond a reasonable doubt, that none tampered with the case property, and the samples, until the same (samples) were sent to the Office of the Forensic Science Laboratory, for analysis. If the prosecution fails to prove this factum, by leading cogent and convincing evidence, beyond a reasonable doubt, then its case is bound to dwindle down, on account of the non completion of link evidence. Crl.Appeal No. 56-DB of 2005 -12- According to Sub Inspector, Som Nath, PW-5, the investigating Officer in this case, he deposited the case property and the samples with seals intact, with M.H.C. Roshan Lal. Roshan Lal, Head Constable, while appearing as PW-6 tendered affidavit Ex. PH. We have perused the original affidavit Ex.PH. The deponent of this affidavit is one Pradhan Singh No.168 Police Station, Guhla, at that time posted as AEC, Kaithal. It was Pardhan Singh who swore the affidavit Ex. PH. However, this affidavit was signed by Roshan Lal, HC 887, AEC, Kaithal on 3.11.1998. Roshan Lal, Head Constable, did not care to examine this affidavit, before tendering the same into evidence. Since this affidavit was solemnly affirmed by Pradhan Singh, MHC , it could not be said to be the affidavit of Roshan Lal, Head Constable. This affidavit, therefore, could not be taken into consideration, for the purpose of proving that the case property and the samples with seals intact, along with the sample seal impressions were deposited with Roshan Lal, MHC, and the same remained un-tampered with till the same (samples) remained in his custody. Once, the affidavit Ex. PH is excluded from the record, then no evidence is left, as to whether, the samples were handed over to Mahabir Singh, Constable No.821of Police Post Ramthali for deposit of the same, in the office of the Forensic Science Laboratory. Roshan Lal, Head Constable, PW-6, during the course of his cross examination in clear-cut terms, stated that in register No. 19 against entry 286, pertaining to this case, no mention of handing over the samples to Constable Mahabir Singh, was made. He further stated that no entry regarding the deposit of the samples in the Forensic Science Laboratory, Madhuban, was made in the register. He further stated during the course of his cross examination, that no mention was made in Register No. 19 that Crl.Appeal No. 56-DB of 2005 -13- the Forensic Science Laboratory, Madhuban returned the samples with objections. He further stated that no mention was made, in the said register, that the objections were removed. He further stated that no mention was made in register No. 19, that the specimen seal bearing impression 'SN' and 'SS' in this case, was deposited with him, along with the case property. Mahabir Singh, Constable, PW-1, also during the course of his cross examination, stated that there was no mention of the fact, in register No.19 of the Police Station, that he was handed over the samples of this case on 11.12.1996, for depositing the same, in the Office of the Forensic Science Laboratory, Madhuban. He further stated, in his cross examination, that there was no mention of depositing the specimen seal with the MHC, along with the case property on 8.11.1996. He further stated that against entry No.286 in register No.19 there was no mention about the objections, raised by the Forensic Science Laboratory, Madhuban. No doubt, the prosecution tried to improve its case, by examining Shamsher Singh, PW-8, who stated that on 23.12.1996, the samples of this case, were handed over to him, by Roshan Lal for deposit of the same, in the Office of the Forensic Science Laboratory, Madhuban, and he deposited the same in untampered condition. During the course of his cross examination, he stated that his statement under Section 161 was recorded. However, no statement under Section 161 of this witness, was found on the record. Sh. A.K. Nagpal, Senior Scientific Officer, Forensic Science Laboratory. Madhuban, PW-10, stated that the samples were received in the aforesaid laboratory on 23.12.1996, and report Ex. PJ, was submitted in respect thereof. He, however, stated that the objections raised on 11.12.1996, were not recorded, in the record, maintained by the said laboratory. Even if, the affidavit of Mahabir Singh Crl.Appeal No. 56-DB of 2005 -14- and the statement of Shamsher Singh, are assumed as correct, link in the chain of prosecution evidence, does not become complete, as there is no evidence of Roshan Lal, M.H.C.,PW-6, as stated above, regarding the deposit of the case property and the samples with seals intact with him; regarding the handing over the same on 11.12.1996 to Mahabir Singh, Constable, PW-1 with seals intact and regarding the handing over of the same on 23.12.1996 to Shamsher Singh, Constable, PW-8. When the sample seal was not deposited with the M.H.C.,it is not known, as to wherefrom, the same came and sent to the Forensic Science Laboratory. While examining Roshan Lal, as a prosecution witness, the concerned Additional Public Prosecutor, for the State, did not take care, to peruse the affidavit Ex. PH, so as to find out that the same was defective. Even,