IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.445 of 2005 Judgment reserved on: 14.11.2008 Decided on: 24.11.2008 Karan Bahadur …Appellant Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Anup Chitkara, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, Judge Appellant has appealed against the judgment, dated 31.12.2004, of the trial Court, whereby he has been convicted of an offence, punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-; in default of payment of fine to undergo imprisonment for a further period of four years. 2. Prosecution case, as it emerges from the evidence on record, may be stated thus. On 3.11.2003, at 2 A.M., a police party, headed by PW-7 SI Balwant Singh of which PW-6 Constable Gurdyal Singh, HC Harbans Lal, HHG Chaman Lal and HHG Hukam Ram, were the other members, left Police Post, Manikaran, for patrolling. PW-7 SI Balwant Singh was Whether reporters of the local papers may be allowed to see the judgment? …2… the Incharge of Police Post, Manikaran, those days. The party organized a Nakka at a place called Kochhar. Around 6 A.M., appellant accompanied by a young lad, named Resham, appeared from the side of village Shetiran. He was carrying a haversack on his back. On seeing the police, the appellant and the young boy accompanying him, tried to flee. They were overpowered. Haversack, which the appellant was carrying, was searched and it was found to contain 5 Kgs of Charas. Two samples, each weighing 25 grams, were separated from the recovered stuff. The samples and the bulk Charas were made into separate parcels and the same were sealed with a seal, which produced impression of English letter ‘B’. NCB Form was filled in, in triplicate. Search and seizure memo. was prepared. The appellant and the boy, accompanying him, were taken into custody and they were apprised of the grounds of arrest. Written report of the matter was drawn and sent to the Police Station through PW-6 Constable Gurdyal Singh. Case was formally registered on the basis of that report. PW-7 SI Balwant Singh produced the parcels, containing the bulk recovered stuff and the samples, to SHO, namely PW-5 SI Kamla, who resealed the parcels with her own seal and made entries in NCB Form about the seals affixed by her on the parcels. One of the sample parcels was sent to Chemical Examiner, who on analysis, opined that the parcel contained Charas. 3. Trial Court charged the appellant with an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and on his pleading not guilty, put him on …3… trial. Prosecution examined PW-7 SI Balwant Singh, who headed the police party and PW-6 Constable Gurdyal, one of the members of the party that intercepted the appellant, with a haversack, containing Charas, to prove the fact of search and seizure. 4. Appellant denied that Charas belonged to him or it was recovered from him. He took the plea that on 2.11.2003, police conducted search of the house of one Saravjit in village Nakthan and arrested a Gorkha, named Prem Bahadur, and when said Gorkha was being taken to the Police Post, he fell from hilltop and died. He stated that when he and Resham raised protest about the death of Prem Bahadur, in police custody, they were framed up and falsely implicated in this case. This plea was taken up by the appellant in his statement, under Section 313 Cr. P.C. To the witnesses of search and seizure, namely PW-6 Constable Gurdyal Singh and PW-7 SI Balwant Singh, suggestions were thrown that Charas was recovered from Gorkha Prem Bahadur and, so, he was arrested and that when said Prem Bahadur tried to escape from police custody, he fell from a hilltop and died, and when the appellant and one lady protested about the death of Prem Bahadur, they were falsely implicated in cases, under Narcotic Drugs and Psychotropic Substances Act. PW-6 Constable Gurdyal Singh denied the suggestion, completely. He even denied that another Gorkha by the name of Prem Bahadur had died. PW-7 SI Balwant Singh also denied that premises of one Saravjit Singh were raided and Gorkha Prem Bahadur was arrested with Charas and that when he was being taken to the …4… Police Post, he fell from a hilltop and died, though he did say that there was an entry in the daily diary about the death of Gorkha Prem Bahadur and he had gone to investigate the matter of his death, to the spot. While hearing the arguments, we noticed this part of the statement of PW-7 SI Balwant Singh and felt that entry in the daily diary, about the death of Prem Bahadur, could be helpful in reaching the truth. Therefore, we ordered that daily diary be produced. We also noticed that entries in the register Malkhana may throw some light on the facts of the case. Daily diary was produced. We noticed some over-writings in entry No.16 dated 2.11.2003, and ordered that PW-7 SI Balwant Singh be produced for Court questioning and ASI Khem Singh, who had accompanied said SI Balwant Singh, to the spot, be also produced for being examined as Court witness. We examined PW-7 SI Balwant Singh and ASI Khem Chand, on 17.7.2008. Record of their examination is placed on the appeal file. 5. When examined by us as a Court witness, PW-7 SI Balwant Singh stated that he had left Police Post, Manikaran, on 1.11.2003, in the company of 2 ASIs, 2 HHCs, 13 Constables, 2 lady constables and 5 HHGs, in connection with detection of crime, under Narcotic Drugs and Psychotropic Substances Act, and that on the next following day, i.e. 2.11.2003, when he was returning to the Police Post, he found the dead body of one Gorkha and conducted inquest, and sent that dead body to Zonal Hospital, Kullu under the charge of HHC Harbans Lal and himself returned to the Police Post around 8 PM and on the same night at 2 AM, on 3.11.2008, he …5… again left for the spot to organize a Nakka. Earlier, when examined as PW-7, in the trial Court, SI Balwant Singh stated that he had gone to the spot to investigate the matter regarding death of Prem Bahadur, an entry about whose death was there in the daily diary. His statement in this Court, is contrary to what he stated in the trial Court, because as already noticed, in this Court he stated that he came to know about the death of Prem Bahadur, when he was returning to the Police Post, Manikaran. Entry No.16, in the daily diary, copy of which has been placed on record, also belies his statement in the trial Court that he had gone to investigate the matter regarding death of Gorkha Prem Bahadur. As per this entry, SI Balwant Singh came to know of the death of Prerm Bahadur when he was returning to Police Post, on 2.11.2003, and spotted the dead body and after conducting inquest despatched the same to Zonal Hospital for postmortem examination, through HHC Harbans Lal. 6. Even the entry (No.16 dated 2.11.2003) in the daily diary appears to be manipulated. This entry pertains to the return of the Police Party that left Police Post on 1.11.2003 for detection of crime under Narcotic Drugs and Psychotropic Substances Act. Name of SI Balwant Singh as author of the entry has been written over some other name. Though initial name is not decipherable, yet it does appear that the author was one of the two ASIs, who were members of the party. Reason is that number of ASIs, who as per this entry returned to the Police Post, has also been changed by over writing. Initially the number of ASIs, who returned with the author of …6… the entry, was written as 1, but by overwriting, it was made to read 2. 7. The entry is also self contradictory. As per entry of departure dated 1.11.2003, PW-7 SI Balwant Singh left the Police Post in the company of 2 ASIs, 2 HHCs, 13 constables, 2 lady constables and 5 HGs. According to entry No.16, dated 2.11.2003, both ASIs, both HHCs, 13 constables, both lady constables and all the 5 HGs, that is to say all the members of the party, returned to the Police Post alongwith SI Balwant Singh. Now, if both the HHCs had returned to the Police Post on 2.11.2003 at 8 PM, as per entry No.16, narration in the body of the entry, that one the HHCs, namely Harbans Lal, had carried the dead body of Prem Bahadur to Zonal Hospital at Kullu, is false on the face of it. Dead body was spotted on 2.11.2003 at 1 or 1.30 P.M. by SI Balwant Singh, per his statement made during questioning by this Court (see: answer to question No.6). After spotting the dead body, SI Balwant Singh claims to have deputed a constable to the Police Post, to fetch inquest forms and when that constable returned with the forms, he conducted inquest and filled in those forms, and it was thereafter that the dead body was despatched by him to Zonal Hospital, Kullu. This is what Balwant Singh stated, when questioned by this Court. It could have been possible for him to conduct inquest and to fill in inquest forms, only when the constable returned. As per entry No.16 dated 2.11.2003, it was after sending the dead body to Zonal Hospital, Kullu, under the supervision of HHC Harbans Lal, that SI Balwant Singh returned to Police Post, Manikaran. Now, when HHC …7… Harbans Lal had carried the dead body to Zonal Hospital, Kullu, presumably around sunset, how could he have accompanied SI Balwant Singh back to Police Post, Manikaran, as recorded in entry No.16, aforesaid. 8. CW-1 Khem Chand stated that the party returned to Police Post, Manikaran, on 2.11.2003, in the evening, and that he did not know where did SI Balwant Singh get the inquest forms from, to prepare inquest report. 9. From the above discussed evidence, following facts emerge prominently: (a) PW-7 SI Balwant Ssingh has made self contradictory statements as to when did he come to know about the death of Prem Bahadur. In the trial Court he stated, in his cross-examination, that he came to know about the death, when he was still at Police Post, Manikaran and, so, he went to investigate the cause of death to the spot, where dead body was lying. Entry No. 21 in the Rojnamcha, copy whereof has been placed on record, however, shows that he left the Police Post on 1.11.2003, at 11.55 PM, to organize a Nakka and to gather information about crime, under Narcotic Drugs and Psychotropic Substances Act. Copy of the entry is also placed on record. Further, when examined by this Court, he stated that he came to know about the death of Prem Bahadur on 2.11.2003, when he was returning to the Police Post, Manikaran, after organizing a …8… Nakka and doing patrol duty for which he left the Police Post on the previous night, vide entry No.21 dated 1.11.2003. (b) Again, PW-7 SI Balwant Singh made false statement about the dead body having been sent to Zonal Hospital for postmortem examination (under the charge of HHC Harbans Lal), because entry No.16, regarding return of the Police Party to Police Post, Manikaran, shows that all the members of the party, including both the HHCs, returned to the Police Post at 8 PM on 2.11.2003. 10. The aforesaid two facts are indicative that PW-7 SI Balwant Singh has something to hide and that he has not come out with whole truth. No explanation has been offered by the prosecution for this. In the absence of any explanation, Court has no option but to believe the version of the appellant that Charas, in question, was recovered from Prem Bahadur and that said Prem Bahadur died when being escorted to the Police Post and when he (the appellant) protested about his death, in police custody, he was falsely implicated in this case. 11. As an upshot of the above discussion, we are of the considered view that the case of the prosecution does not stand established beyond reasonable doubt. Hence, the appeal is accepted and the judgment of the trial Court is set aside and the appellant is acquitted. He being in jail, serving out sentence, is ordered to be released, forthwith, in case his custody is not required in any other case. …9… 12. Before parting with the judgment, we would like to observe that in the memo. of personal search Ext.PW6/F, there are over-writings about the number of currency notes of the denomination of Rs.500/- and the total amount represented by such currency notes, which gives rise to suspicion that initially the Investigating Officer did not prepare correct record of the exact amount of money recovered from the appellant obviously with a view to misappropriating a portion of the money. Initially, the number of currency notes of Rs.500/- denomination was recorded as 2 and the total amount represented by such currency notes was recorded as Rs.1000/-, but by overwriting, the number of currency notes has been changed to 6 and the total amount represented by such currency notes to Rs.3000/-. The matter needs to be inquired into. We direct the Director General of Police to inquire into the matter and in case our suspicion is found to be correct, to take suitable action against the Investigating Officer. Office of Advocate General will send a copy of this judgment to the Director General of Police alongwith a copy of memo. Ext.PW6/F, for necessary action. Appeal stands disposed of. (Surjit Singh), J. November 24, 2008(ss) (Surjnder Singh), J.