State of Himachal Pradesh vs Ram Kali

Sureshwar Thakur, J.—The State of Himachal Pradesh is aggrieved by the findings of acquittal recorded in favour of the respondent/accused by the learned Special Judge (II), Mandi, District Mandi, H.P. Being aggrieved, it has sought the leave of this Court for instituting an appeal therefrom for assailing it.

Briefly stated the facts of the case are that on 13.12.2010 ASI Shyam Lal alongwith HC Dina Nath, C. Baldev Singh and LC Naina Devi was present at Shili Larji road and police had laid a naka there in the morning at about 9.00 a.m. The accused came at the spot from Larji side on foot who all of a sudden stopped after seeing the police. On suspicion the accused was apprehended. The police officials gave their personal search to the accused and memo was prepared to this effect. The consent as required under Section 50 of the NDPS Act of the accused was procured. The accused was searched and she was found wearing knee cap in her both knees. On opening the right knee cap, the cannabis wrapped in a plastic tape was found weighing 500 grams. On opening the left knee cap 250 grams of opium was found wrapped in a brown tape. The opium as well as cannabis were put in the same polythene which were taken into possession alongwith knee caps. Case property was sealed at the spot with seal impression "M". The sample seal was taken separately after use and it was handed over to HC Dina Nath. Other formalities were completed at the spot. Rukka was sent to the police station and FIR was registered.

On conclusion of the investigation into the offence allegedly committed by the accused, report under Section 173 of the Criminal Procedure was prepared and filed in the Court.

The accused was charged by the learned trial Court for hers having committed offences punishable under Sections 18(c) and 20(b)(ii)(B) of the NDPS Act. In proof of the prosecution case, the prosecution examined 11 witnesses. On conclusion of the recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, in which the accused claimed innocence and pleaded false implication in the case.

On an appraisal of evidence on record, the learned trial Court returned findings of acquittal in favour of the accused/respondent.

The State of H.P. is aggrieved by the judgement of acquittal rendered by the learned trial Court. The learned Additional Advocate General has concerted to vigorously contend qua the findings of acquittal recorded by the learned trial Court being not based on a proper appreciation of evidence on record, rather theirs being sequelled by gross mis-appreciation of material on record. Hence, he contends for leave being granted to the State of H.P. to institute an appeal therefrom for assailing it.

I have heard the learned Additional Advocate General at length and have also gone through the entire material on record.

Cannabis weighing 500 grams besides opium weighing 250 grams were under memo Ext. PW-8/D recovered from the alleged conscious and exclusive possession of the accused. The learned trial Court had circumspectedly evaluated the testimonies of PW-8, PW-9 and PW-11. PW-9 a witness to consent memo Ext. PW-8/B has in her testimony recorded before the learned trial Court unequivocally disclosed therein of NCB forms in triplicate standing scribed by the I.O. after completion by him of a personal search of the accused in sequel to an apposite consent memo comprised in Ext. PW-8/B whereunder the accused consented to the Investigating Officer holding her personal search, whereafter the case property stood sealed by the Investigating Officer. Since the Investigating Officer is enjoined to scribe NCB forms in triplicate subsequent to the case property standing sealed by him in pursuance to its recovery under Ext. PW-8/D, the testimony of PW-11 of the Investigating Officer scribing the NCB forms prior to his sealing the case property amasses an inference of Investigating Officer scribing the NCB forms prior to his sealing the case property wherefrom an inference is derivable of PW-9 being unavailable at the site of occurrence at the apposite stage of the Investigating Officer having therein launched besides concluded the proceedings relating to search and recovery of the aforesaid items of contraband from the purported conscious and exclusive possession of the accused. In sequel, the discrepant evidence aforesaid qua the aforesaid items of contraband standing recovered on the Investigating Officer holding her personal search at the purported site of occurrence casts an aspersion besides renders vulnerable to skepticism qua their recovery standing effectuated at the site of occurrence in the manner as enunciated in F.I.R. Ext. PW-5/A.

Apart therefrom there is an apparent contradiction in the testimonies of PW-2 and PW-8 inasmuch as PW-2 deposes of all documents standing scribed by ASI Shyam Lal whereas PW-8 deposes of consent memo Ext. PW-8/B standing scribed by PW-2 at the spot. The open and rife contradictions intra se the depositions of PW-2 and PW-8 qua the author of Ext. PW-8/B constrains an inference of PW-8 being unavailable at the site of occurrence at the stage when the apposite proceedings stood initiated besides concluded at the purported site of occurrence. Given the unavailability of PW-8 at the purported site of occurrence at the stage when the Investigating Officer initiated besides concluded the apposite proceeding thereat renders his testimony alike the testimony of PW-9 to be unworthy of credence for anchoring thereupon any conclusion of guilt of the accused qua the offence she stood charged and tried. Cumulatively, his testimony being discardable alike the testimony of PW-9 renders the genesis of the prosecution version to stand imbued with falsity especially when it stands harbroured upon the testimonies of official witnesses who for reasons aforesaid were unavailable at the site of occurrence whereat the apposite proceedings stood held and concluded by the Investigating Officer. In aftermath, given the genesis of the prosecution version qua the apposite proceedings standing held and concluded at the site of occurrence being hence palpably displayed to falter wherefrom an inference stands engendered of the aforesaid items of contraband standing recovered from the purported and exclusive possession of the accused at a place other than besides in a manner other than the one displayed in the F.I.R. As a corollary, with the factum probandum of recovery of both items of contraband standing effected at Shili Larji Road under memo Ext. PW-8/D standing capsized, the ensuing sequel thereof is of the Investigating Officer having engendered a false case against the accused. Apart therefrom with the afore noticed infirmities making pervasive inroads in the genesis of the prosecution version hence rendering it unbelievable, the factum of the Investigating Officer having not concerted to join any independent witness in the apposite proceedings held besides concluded by him at the purported site of occurrence assumes significance.

The Investigating Officer, is not obliged to associate independent witnesses in his holding proceedings for carrying out search and recovery of contraband from the alleged conscious and exclusive possession of the accused nor also the non association of independent witnesses by the investigating officer in the proceedings relating to search and recovery of contraband from the alleged conscious and exclusive possession of the accused would oust or discount the probative worth of the testimonies of the official witnesses. However, when independent witnesses despite proven evidence of theirs being available in close proximity to the location where the proceedings relating to search and recovery of contraband from the conscious and exclusive possession of the accused stood launched or were concluded, stand not associated, such non association of independent witnesses by the Investigating Officer despite their proven availability would nurse an inference of their non association in the apposite proceedings by the Investigating Officer being both deliberate or intentional. Concomitantly also it would give succor to an inference of the Investigating Officer having omitted to join independent witnesses despite their availability in the vicinity of the location where the proceedings relating to search and recovery of contraband from the conscious and exclusive possession of the accused were launched or concluded, as he intended to smother the truth qua the genesis of the prosecution version. The genesis of the prosecution version would gain credence with this Court only when it is free from a taint of it being reared by a partisan or a slanted investigation having stood conducted by the investigating officer. The investigation carried out by the Investigating Officer would garner an element of slantedness or distortion when the investigating officer despite availability of independent witnesses in proximity to the site of occurrence deliberately omits to join them in the proceedings relating to search and recovery of contraband from the purported exclusive and conscious possession of the accused. Consequently, a slanted or a distorted investigation by the Investigating Officer would erode the genesis of the prosecution story. Now the apt evidence for discerning the factum of availability of independent witnesses in the immediate vicinity or in close proximity to the location or the site of search and recovery of contraband from the conscious and exclusive possession of the accused besides concomitantly an omission to join them being deliberate as well as intentional, for sprouting a further inference of hence the investigation carried out by the Investigating Officer being both slanted and tainted besides distorted whereupon no reliance can be placed by this Court, stands comprised in the testimonies constituted in the cross-examinations of PW-9 and PW-11. In the cross-examinations of PW-9 and PW-11 there exist a palpable disclosure of a security officer manning the dam located in close vicinity to the site of occurrence whereat the apposite proceedings were held by the Investigating Officer. In sequel, with the existence of a vivid display in the testimonies of PW-9 and PW-11 of a security officer manning the dam in close proximity whereof the apposite proceedings stood initiated and concluded by the Investigating Officer entailed his association as an independent witness by the Investigating Officer in the apposite proceedings being peremptory for smothering the effect if any of the discrepant evidence of the aforesaid PWs. However, despite availability of the aforesaid independent witness in close proximity to the purported site of occurrence no concerted efforts were made by the Investigating Officer to join him in the apposite proceedings.

Consequently, the omission on the part of the Investigating Officer to associate an independent witness in the apposite proceedings held by him at the site of occurrence moreso when even the prosecution witnesses have rendered a discrepant version qua the genesis of the prosecution version is obviously construable to be both intentional and deliberate for camouflaging the truth qua the occurrence. Furthermore, the inference which is available to be drawn by this Court is of the Investigating Officer having carried out a slanted besides a contorted as well as a contrived investigation whereupon no reliance can be placed by this Court. In sequel, the genesis of the prosecution version founded upon a skewed, faulty and partisan investigation cannot be lent credence by this Court

For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. Consequently, the instant application is dismissed, in sequel, the prayer of the State of Himachal Pradesh for grant of leave to appeal against the judgment of the learned trial Court is refused.