State of H.P. vs Ashok Kumar and Others

R.B. Misra, J.—The present criminal appeal has come-up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 7.10.1998, passed by learned Addl. Sessions Judge, Sirmaur District Mahan, H.P. in Sessions Trial No. 9-N/7 of 1997, acquitting the respondents-accused for the offence, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "ND & PS Act"), in reference to FIR No. 112/95, dated 4.12.1995.

The prosecution case is that on 4.12.1995, Dy. S.P. Sobha Ram (PW-6) along with H.C. Mohan Singh, Constable Sita Ram and Constable Hari Nand left Police Station around 3.30 A.M. in connection to enquire the murder case by Gipsy bearing No. HP-03-838, when they reached Taproli at about 6.00 A.M. noticed that a Maruti Van bearing No. HP-02-4470 was coming from opposite side which was stopped and respondents-accused were found sitting. On suspicion, the search of Dicky was made from which polythene bag Ext.P1 and a red cloth bag Ext.P2 were recovered from which charas containing one kg. was recovered in presence of Sahi Ram (PW-3) and 600 grams of charas was also recovered in red cloth bag, out of which ten grams each of two samples were taken and remaining charas sealed with seal impression ''N'' and same were sent to chemical examination. On investigation, all the respondents-accused were charged for aforesaid offence and the case was committed to Sessions Court.

In order to prove its case, the prosecution examined as many as six witnesses, whereas, the respondents-accused through their statements u/s 313 Cr.P.C. denied the prosecution case.

On scrutiny of prosecution witnesses and materials on record, we notice that Surinder Thakur and Sandeep Thakur have been associated as independent witnesses, however, they have not supported the prosecution case. Surinder Thakur PW-1 has stated that on the date of occurrence he was called by the police that a white coloured Maruti Van is parked in front of the shop of Sahi Ram (PW-3) at Taproli and all the three respondents-accused are present in the van, however, nothing was searched in his presence. PW-1 has further stated that two packets of charas, one in cloth piece and other in polythene paper were opened in his presence in the shop of Shri Sahi Ram PW-3 in presence of PW-3 and on weighing the possession of same was taken as Ext.PW1/A. However, PW-1 independent witness has also been declared hostile. In cross-examination also, he has not at all supported the prosecution case.

PW-3 Sahi Ram has also been declared hostile by the prosecution by saying that nothing was recovered in his presence and he does not know the respondents-accused persons. So far witness Sandeep Thakur is concerned, he has not been produced in the witness box for the reasons best known to the prosecution, perhaps, he could have been won over by the defence side. PW-2 Durga Singh has also not supported the prosecution case and has been declared hostile. PW-3 Sahi Ram has stated so much so that a Constable came to his house on 4.12.1995 and told that police had recovered charas from few persons and Dy. S.P. has sent him to bring scale and weight, however, he himself did not go to the spot and only handed over the scale and weight to the Constable and about half an hour later police party came to his house and handed over back the scale and weight and got his signatures on certain documents. In cross-examination also he has not supported the prosecution case. H.C. Mohan Singh PW-4 and Dy. S.P. Sobha Ram PW-6 no doubt consistently have endeavoured to support the prosecution case narrating the prosecution like parrot.

Testimony of prosecution witnesses and materials on record are not inspiring confidence and the prosecution case cannot be said to have proved its case beyond reasonable doubt on the basis of the testimony of official prosecution witnesses who themselves are not inspiring confidence. Out of prosecution witnesses, only PW-1 was examined, who has also not supported the prosecution case. Keeping in view the improbabilities, inconsistencies and discrepancies in the testimony of prosecution witnesses, recovery and seizure of charas, the prosecution case cannot said to have brought home the guilt to the respondents-accused. Accordingly, the appeal, being devoid of any merit is, therefore, dismissed.

Bail bonds, furnished by the respondent-accused are hereby discharged.