Darshan Singh vs State of Haryana

K.S. Kumaran, J.

RevisionpetitionerDarshan Singh faced trial before the Judicial Magistrate Ist Class, Panipat, in case FIR No. 210/3 of 1982 (F.I.R. No. 69 dated 21.1.1982Police Station City Panipat) under section 9 of the Opium Act. He was accordingly convicted and sentenced to undergo rigorous imprisonment for nine months, to pay a fine of Rs. 600/ and in default to further undergo imprisonment for one and half months. Aggrieved by the same, accused Darshan Singh filed criminal appeal No. 37 of 1986 and the learned Sessions Judge, Karnal, after hearing the parties dismissed the same by his judgment dated 7.1.1987. AccusedDarshan Singh has, therefore, filed this criminal revision.

The case of the prosecution is as follows :

Kashmiri Lal (PW3) and other police officials were investigating another case against accused Darshan Singh. During the course of that investigation accusedDarshan Singh made a disclosure statement (Ex.PA) and led the police officials to the recovery of 3 Kgs. of opium from the kitchen of his house. Out of this 10 grams of opium was taken as sample. The same and the remaining opium were separately sealed and taken into possession as per recovery memo EX.PB in which Harbans Lal ASI, and Rajinder Singh PW4, the alleged independent witness, attested. On this intimationEx.PC was sent to the Police Station on the basis of which the formal FIR Ex. PC/1 was recorded. After receipt of the Chemical Examiner''s report (Ex.PE) the chargesheet was filed, and the accused was tried.

The prosecution examined ASIHarbans Lal (PW1), Sobh Raj (PW2), Kashmiri Lal (PW3) and Rajinder Singh (PW4) and tendered into evidence the report of the Chemical Examiner (Ex.PE), the affidavits of Banarsi Lal MHC (Ex. PF) and Kashmiri Lal (Ex. PG). The accused in his statement under Section 313 Cr.P.C., apart from denying the allegations against him, pleaded false involvement. He also tendered into evidence Ex. DA a certified copy of the complaint given against Head ConstableRam Chander which according to him resulted into foisting of false cases against him. The accused also tendered into evidence the statement of Rajinder Singh (Ex.DB). The official witnesses gave evidence supporting the case of the prosecution, but PW4Rajinder Singh, the alleged independent witness did not support the version of the prosecution fully. He first stated that the accused made a disclosure statement and then changed and stated that the accused had not made any disclosure statement, while the other witnesses stated that the accused made disclosure statement and led to the recovery of the opium. The accused contended that as the independent witness has not supported the prosecution there was not testimony of any independent witness other than the police officials and, therefore, the prosecution should not be believed. The defence also pointed out certain discrepancies in the evidence of the official witnesses. The accused also contended that Head ConstableRam Chander trespassed into his house when he was absent and attempted to molest his wife, in respect of which a complaint against the said Head Constable was given and, therefore, the case has been foisted against him. But the learned Magistrate did not accept the contentions raised by the accused. He held that in the present case an independent witness was associated and, therefore, the contention that no independent witness was associated cannot be accepted. The learned Magistrate also held that the discrepancies pointed out by the defence were minor. So far as false implication on account of the complaint against the Head ConstableRam Chander is concerned, the learned Magistrate held that while that complaint was given in Sept. 1981 the present occurrence took place on 21.1.1982, and if really a case was to be foisted against the accused the police would not have waited for such a long time. He also found that though the said occurrence alleged in that complaint took place in Sept. 1981 the complaint was given on October 1981 and, therefore, the complaint filed against Head ConstableRam Chander was false. Resultantly the learned Magistrate did not accept this contention also. The learned Magistrate also held that the official witnesses had no enmity against the accused. The Appellate Court also did not agree with the accused and dismissed the appeal, which has led to this criminal revision.

I have heard the counsel for both the sides and perused the records.

The first contention of the learned counsel for the petitioner is that it is clear from the case of the prosecution that the police party went to the house of the accused on information received with regard to the other case (which is the subject matter of Cr. Revision No. 244 of 1987 which is also being disposed of by me today by a separate judgment); that the accused/petitioner was found to be in possession some contraband under the Opium Act in respect of which the other case was filed, and it is during the course of the investigation in the other case that the accused/petitioner allegedly made a disclosure statement leading the police to the recovery of 3 Kgs of Opium from the kitchen of the accused/petitioner. Pointing out these factors, the learned counsel for the petitioner contends that in these circumstances where the police party raided the house of the petitioner on prior information it ought to have called independent and respectable witnesses of the locality as contemplated under Section 100(4) of the Code of Criminal Procedure, and the failure to do so affects the case of the prosecution. The learned counsel appearing for the State on the other hand contended that it is not as if no independent witness was associated in this case, but Rajinder Singh (PW4) who was associated in the investigation was an independent witness though he did not wholeheartedly support the case of the prosecution, and, therefore, the argument put forth by the learned counsel for the accused/petitioner is unacceptable. According to him the independent witnessRajinder Singh (PW4) who is a witness to the disclosure statement and the recovery, has to some extent supported the defence.

I do not agree with the contention put forth by the counsel for the State in this regard. ASIHarbans Lal (PW1) stated in his evidence in cross examination that the police party was at Durga Chowk and met Rajinder Singh (PW4) there by chance. PW3 Kashmiri Lal the other police official also stated that they met Rajinder Singh (PW4) in the market and that he did not know him previously. It is on a prior information the police party went ot the house of the accused/petitioner and the accused was seen coming out, and from him 2 Kg of opium was recovered on his personal search. This is the subject matter of the other case. But the question is when the police party went on prior information they should have associated respectable and independent witnesses of the locality. It is not as if the police party could have expected that the accused/petitioner would make a disclosure statement and would have led them to the recovery of some opium from his kitchen. Therefore, the witness, who has been associated must be a person of that locality, whereas Rajinder Singh (PW4) was taken from the Durga Chowk itself, and it is evident that he was not known to the police party. PW4 Rajinder Singh himself admitted that his house is at a distance of 4 to 5 km. from the house of the accused/petitioner. So, he is not an independent and respectable witness of that locality. Therefore, the prosecution cannot contend that they had with them an independent witness at the time the petitoner/accused allegedly made the disclosure statement and then led them to the recovery of 3 Kg of opium. In the circumstances of this case prosecution has to fail for noncompliance with the provisions of Section 100(4) of the Criminal Procedure Code. The learned counsel for the petitioner/accused relied upon a Division Bench decision of this Court in State of Haryana v. Kamla Ram, 1992(2) RCR 63 (P&H) in support of his contention. That was a case where a police party which was present near a nala on the G.T. Road, Panipat, saw the accused coming carrying a bag. He was stopped and was searched. Charas was found in his possession and was seized. During trial, the prosecution examined only the official witnesses. The accused contended that although private witnesses were available, the investigating officer had withheld the independent witness. The evidence or the official witness was found to be full of contradictions. The statement of InspectorSatbir Singh that he tried to contact 2/3 persons to associate them but they refused to join investigation was not accepted since he had not noted the names of those persons in the case diary. In these circumstances, this Court dismissed the criminal appeal filed by the State. As against this the learned counsel for the State relied upon a decision of this Court in Thandi Ram v. State of Haryana, 1995(3) RCR 327 (P&H) wherein the evidence of the official witnesses was accepted. But that decision is distinguishable, because, that was a case where the police party which was standing at a place while they were on patrol duty, saw the accused coming and apprehended him on suspicion and recovered from a personal search opium. It was in those circumstances, this Court after taking note of the evidence of the Assistant Sub Inspector and the constable that at that early part of the day when the search of the accused was taken, there was no other person on the road, held that though under Section 100(4) of the Code of Criminal Procedure, the Investigating Officer was duty bound to join independent witness while making a search but in the circumstances of the case where the accused was hurriedly apprehended and his personal search was undertaken, and since at that time no other person was within sight, independent witness could not be joined. This Court after analysing the evidence of the official witnesses and finding it to be creditworthy held that the accused could be convicted on the evidence of the official witnesses. But that is not so in the present case on hand. As pointed out already the police party had gone to the house of the accused on prior information. Therefore, there was time and opportunity for the police party to have associated independent witnesses of the locality. PW1 Harbans Lal ASI specifically admitted in his evidence that no witness of the locality was asked to join the investigation. PW3Kashmiri Lal has also stated that the people of the locality had collected but they were not joined in investigation. Therefore, the nonjoining of the independent witness of the locality certainly affects the veracity of the prosecution version, when PW4Rajinder Singh cannot be called an independent witness of the locality.

Further even the evidence of this alleged independent witnessPW4Rajinder Singh is unreliable. At first he stated that the accused/petitioner made a disclosure statement, then immediately changed and stated that the accused did not make the statement. He even went to the extent of stating that the signature on Ex. PA, the alleged disclosure statement of the accused, was not his. Of course during the evidence of his examinationinchief, he stated that 3 kgs of opium was recovered from the accused/petitioner, which is not even the case of the prosecution. According to the prosecution after making the disclosure statement the accused led them to the kitchen and the opium was recovered from the loft in the kitchen. Even in crossexamination he only stated that opium was recovered from the kitchen. One important factor in the evidence of PW4 is that he stated that along with the accused, his wife, children and mother were also living. In such circumstances, when PW4 Rajinder Singh has prevaricated with regard to the alleged disclosure statement and as to where the opium allegedly recovered was, this statement of the PW4 that others were also living with the accused assumes significance since the accused cannot be stated to have been in conscious possession of this opium, unless it is connected by the disclosure statement. But the evidence of PW4Rajinder Singh does not unequivocally support the case of the prosecution in this regard. On the other hand, from what I have pointed out, it is clear that his evidence is unreliable.

Of course, the learned counsel for the State contended that the evidence of the official witnesses can be relied upon since they had no enmity or motive to depose falsely against the accused/petitioner. Of course, in the absence of acceptable and independent testimony, the evidence of the official witnesses can be accepted after careful examination as to whether it is worthy of acceptance. This is the normal rule, but, it may not have universal application in all the cases, especially where there was a possibility of getting independent and respectable witnesses of the locality, and the investigating agency had not associated any such person, but has chosen to take with it a witness who is a resident of a different locality which is 4/5 Km. away from the house of the accused, since Section 100(4) of the Code of Criminal Procedure specifically provides that search should be made in the presence of two or more independent and respectable inhabitants of the locality. The investigating agency after having taken with it a person from a different locality, cannot claim that he is an independent person when actually independent and respectable witnesses of the locality could have been associated. PW1 specifically stated that he did not associate any independent witness of the locality but, later on stated that some people had collected there, and that when he asked them they did not agree to be witnesses. But he has not informed the Court that he has noted the names of such persons whom he approached and who had refused to join investigation. In these circumstances, the normal rule that the evidence of the official witnesses should be believed cannot be accepted.

Even otherwise, I find the evidence of the official witnesses also cannot be relied upon because a complaint was given against Head ConstableRam Chander of the same Police Station alleging that in September 1981 he entered the house of this accused/petitioner and attempted to molest his wife. Such a complaint was given is admitted by PW1, though he stated that he did not know whether the said Head Constable was suspended on this complaint. The contention of the accused/petitioner is that it is only because of that false cases have been foisted against him. This contention of the accused/petitioner was rejected by the trial Court as well as by the Appellate Court. The trial Court observed that the complaint relates to occurrence which is stated to have taken place in September 1981 and the complaint as such was given in October 1981 after a long time, and also held that if really this was the motive to foist the case against the accused/petitioner the police would not have waited till 21.1.1982 to foist the case. The other reason given by the trial Court was that the said complaint was also dismissed and, therefore, that was also a false complaint. The learned counsel for the State also contended that the accused/petitioner has not attributed any motive to the witnesses who have deposed in this case. But these reasons cannot at all be accepted. Whether the complaint against the Head ConstableRam Chander was true or false it can certainly be a motive for the police to foist the case against the accused/petitioner. If it was false, that was all the more the reason why the police should have some grudge against the petitioner/accused. Therefore, the fact that the complaint was dismissed does not in any way dis prove the motive attributed to the police. The other argument that the witnesses who have deposed in this case are not the persons against whom the accused/petitioner had attributed motive, is no reason to reject the contention of the petitioneraccused. Head ConstableRam Chander was of the same Police Station against whom a complaint had been given, which could certainly be a reason for the officials of this police station to foist a case against the petitioner/accused. This is especially so when the said Head Constable was suspended. The other reason given by the Appellate Court that 3 Kg of opium could not be planted on the accused, cannot also be a good reason, because, PW1 Harbans Lal admitted in his evidence that on the very same day a huge quantity of opium was seized from one Hari Ram of the Fire Brigade, though he denied that a portion of the same was used for planting it on the accused/petitioner. So, it was not at all difficult for the police to plant even 3 Kg opium on the accused, when a huge quantity of opium had been recovered on the same day from some other person. In these circumstances, the evidence of the official witnesses only becomes unreliable, and the necessity of having independent and respectable witness of the locality, became all the more necessary. Therefore, I am of the view that it is not possible to place reliance on the evidence of the official witnesses and to convict the accused/petitioner.

The learned counsel for the petitioner also contended that the affidavits Exhibits PF and PG, which provided the link evidence have not been verified in accordance with the provisions of Section 297 of the Code of Criminal Procedure inasmuch as the verification did not say as to which part of the affidavit was made on the belief of the deponent and which part of it was to his knowledge. He also contended that these witnesses were not offered for crossexamination, and the fact that these persons filed such affidavits has also not been put to the accused while questioning the accused under Section 313 Cr.P.C. Of course, it is seen that the verifications in these affidavits do not confirm to the provisions contained in Section 297 Cr.P.C. It is also seen from the records of the trial Court that these deponents have not been offered for crossexamination by the counsel for the accused. But the learned counsel for the State contends that unless some prejudice is caused and the same is established by the accused, the accused/petitioner cannot have any grievance. But in view of my finding on the other aspects mentioned above, it is not necessary for me to go into these questions, since the accused/petitioner is entitled to acquittal on the other aspects mentioned above.

In the result, this criminal revision petition is allowed. The conviction of and the sentence passed against the accused are set aside and the accused/petitioner is acquitted. The fine, if paid, will be refunded to the accused/petitioner.