State of H.P. vs Raj Kumar and others

Deepak Gupta, J.—It is stated that respondent No. 4 has expired. Therefore, the appeal stands abated as far as he is concerned.

This appeal by the State is directed against the judgment dated 5th March, 2003, delivered by the learned Sessions Judge, Solan, in Sessions Trial No. 10-S/7 of 2002, whereby he acquitted the accused persons of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (hereinafter referred to as the Act).

The prosecution story, in brief, is that PW-9, Additional S.P. Sunder Lal, received a secret information telephonically in his office that one Qualis vehicle bearing registration No. CH-03 E 4673 was coming from Rajgarh side. This vehicle was being driven by accused Pradeep Singh wearing white bush-shirt and black pant. On the seat adjoining the driver, accused Som Nath (since deceased) was sitting wearing red checked shirt and blue jeans. Two other accused, namely Raj Kumar and Meena, were allegedly sitting on the rear seat of the Qualis and the description of the clothes was also given. According to the secret information, these four accused persons were engaged in the business of smuggling of contraband substance including charas. On the basis of this information, PW-9 proceeded to record reasons of his belief, Ex. PR, and sent the same to the Superintendent of Police, Solan through his Reader Hem Raj. Thereafter, he proceeded towards Jatoli in his vehicle alongwith his gun man and driver, Romesh Chand. He also took PW-10, SHO, Smt. Babita Rana, from Police Station Solan, who was accompanied by Head Constable Biru Ahmad, Head Constable Ram Rattan, Constable Mool Raj and Lady Constable Rita in a separate vehicle bearing No. HP-14 3002, driven by Constable Raj Pal. It is alleged that police associated two independent witnesses, Sham Lal (PW-1) and Krishan Lal (PW-2), with the search and thereafter, the raiding party reached near Jatoli and stood near a rain shelter. Within a few minutes, at about p.m., they saw the vehicle bearing No. CH-03 E 4673 coming from the opposite side. The vehicle was stopped and the accused were asked to disclose their identity and they disclosed that they were all residents of Chandigarh. The Additional S.P. informed the accused that he suspected that they were carrying contraband and, therefore, wanted to search them. The accused agreed to be searched by PW-9, who himself was a gazetted officer. During the course of the search, the police recovered a yellow coloured polythene bag lying in the middle of the rear seat and the said bag had the words "Sushil Garments, Chandigarh" printed on it. When the bag was opened, it was found to contain charas. Scales were arranged from the shop of one Shri Amar Singh and on weighment, the charas was found to be 1 kg 225 gms. Two samples of 12.5 gms. each were separated and the bulk charas as well as the two samples were sealed with seal ''T'', which was handed over to witness Sham Lal. Thereafter, other investigation was done on the spot. Rukka, Ex. PO, was sent for registration of the case, on the basis of which FIR, Ex. PP, was registered.

Thereafter, PW-10, SHO Babita Rana, took over the investigation of the case and prepared the inventory etc. The sample of charas was sent to CTL Kandaghat through PW-4, Constable Prakash Chand, and as per the report of the Analyst, Ex. PT, the sample was that of charas having resin content of 23.89%. On the basis of this material, the accused persons were charged with having committed the offence aforesaid. They pleaded not guilty and claimed trial and after trial, they have been acquitted by the learned trial Court.

At the outset, it may be stated that the two independent witnesses associated with the search, PW-1, Sham Lal, who was the Pradhan of Gram Panchayat Kothon and PW-2, Krishan Lal, who was the Up Pradhan of the said Panchayat, turned hostile. According to them, though they joined the police investigation team, by the time they reached the spot, the accused persons had already alighted from the vehicle and were standing on the road. Therefore, as per their version, the accused persons were not sitting in the vehicle, but were standing around it. Both of them also stated that in their presence, the vehicle was not searched and the charas was already lying on the road when they reached on the spot.

By now, the law is well settled that even if the independent witnesses turn hostile, the Court can rely upon the statements of the official witnesses. Official witnesses are as good witnesses as independent witnesses. But in cases where the independent witnesses turn hostile, then the statements of the official witnesses have to be scrutinized with greater care and caution. It is also a well settled principle that in such cases, if there are contradictions and especially major contradictions in the statements of the prosecution witnesses, then the same assume greater significance and reliance cannot be placed on the official witnesses.

The learned trial Court has pointed out material contradictions in the statements of the witnesses. There are two sets of witnesses: one set which included PW-9, ASP Sunder Lal and the police officials who accompanied him and the other set is of PW-10, Babita Rana and the police officials who accompanied her. There are many contradictions in the statements of these witnesses. As per the challan, the contraband charas was recovered from the middle of the rear seat of the vehicle, but all the police officials, when they appeared in Court, stated that the charas was lying at one end of the seat.

Another material contradiction is that according to PW-9, he alongwith his gun man and driver went in a separate vehicle and they associated two independent witnesses from village Shamti, but other set of witnesses stated that the Additional SP and the SHO Babita Rana were both travelling in the same vehicle. Whereas according to PW-9, the independent witnesses were associated at Village Shamti, the remaining witnesses stated that they were associated at Village Kothon.

According to PW-10, Babita Rana, PW-9 Additional SP had followed her and he arrived at the spot immediately after they had stopped the vehicle of the accused persons, but this is not the case set up by the Additional SP. Even with regard to the initial departure of the raiding party from Solan, there is contradiction as to where the Additional SP, PW-9, joined them. One version is that the Additional SP was in the police station from where he took the police party. This would be the natural course of events if the secret information was received by the Additional SP in the police station itself. However, the version of some other witnesses is that the Additional SP met them on the main road at the point where the main road joins the road leading to the police station.

Another important factor is that the report, Ex. PG, wherein the details of the secret information are given, is so detailed that a doubt is cast whether it was actually received prior to the raid or was concocted thereafter. Another important discrepancy is that according to PW-4, he took two samples to CTL Kandaghat, but in the report, there is mention of only one sample. The learned trial Court on the basis of the aforesaid discrepancies and some other discrepancies noted by him was justified in acquitting the accused. Therefore, we find no reason to interfere in the order of acquittal passed by the learned trial Court, which is accordingly upheld.

Before parting with the case, we are constrained to make some adverse observations about the manner in which PW-1, Sham Lal, son of Shri Durga Ram, and PW-2, Krishan lal, son of Shri Mast Ram, have conducted themselves in the present case.

PW-1, Sham Lal, was the Pradhan of Gram Panchayat Kothon and PW-2, Krishan Lal, was the Up Pradhan of that Gram Panchayat. Though, PW-1 had only studied till Class-VII, he has clearly stated that he knows Hindi. PW-2 is a graduate. According to the prosecution, the recovery took place in the presence of both the witnesses and they both signed a number of documents at the time when the consent of accused was taken and when the search of the accused and the vehicle was done for recovery of the contraband.

Ex. PA is the consent form which bears the signatures of both these witnesses, in which it is clearly mentioned that the accused were still sitting in the vehicle, when they were asked for their consent whether they were agreeable to get themselves and the vehicle searched from the police officials, Magistrate, gazetted officer etc. Ex. PB is the search memo given by thepolice to the accused. Ex. PC is the search memo of regarding the search of Qualis and according to this search memo, the bag was found on the rear seat of the Qualis and it contained charas weighing 1 kg 225 gms. This memo has been signed by both these witnesses. There are other documents, such as Ex. PH, Ex. PJ, Ex. PK, Ex. PL, Ex. PM, Ex. PN, signed by these witnesses. No doubt, these witnesses have supported the prosecution case to some extent in so far as the sealing etc. of the charas is concerned, but they have turned hostile and have stated that the charas was not recovered from the vehicle in their presence and that the four accused were already standing outside the vehicle when they were searched.

We are dealing here with persons, one of whom was the Pradhan and the other was the Up-Pradhan of Gram Panchayat Kothon holding an elected office. They are not illiterate, unlettered persons. Such persons command respect in the society and it is not expected of persons of the stature of these witnesses to sign documents without reading them and without realizing the implication of their acts. The documents, which these witnesses signed, could have led to the conviction of an innocent person. If what the witness is saying in Court is correct then an innocent person could have been sent behind bars for more than ten years. The callous attitude of these witnesses is apparent from the fact that they became part of a conspiracy to create forged evidence against the accused. Either the statements of these witnesses in Court are false, in which event they would, prima facie, be liable of having committed an offence punishable u/s 191 of the Indian Penal Code or they are parties to fabricating false evidence in which event they would be also, prima facie, liable of having committed an offence punishable u/s 192 of the Indian Penal Code. The statements of these witnesses made on oath in Court cannot co-exist with the documents signed by them. Both cannot be correct. One of them is obviously false. A person holding the post of Pradhan and a person holding the post of Up-Pradhan are not expected to sign any document without verifying the contents thereof. The signing of such documents without verifying facts can lead to total mis-carriage of justice and conviction of an innocent person. This is an offence against the administration of justice. Giving or fabricating false evidence with an intention to procure conviction is an offence falling under Chapter - II of the Indian Penal Code. Making a false statement in Court is also an offence.

We are, prima facie, of the opinion that PW-1, Sham Lal, son of Shri Durga Ram, resident of Village Shamti, Tehsil and District Solan, H.P., and PW-2, Krishan Lal, son of Shri Mast Ram, resident of Village Kundla, Tehsil and District Solan, H.P., are liable to be tried for committing an offence either of fabricating false documents or of committing perjury. However, before initiating any action against them, we deem it fit that notices be issued to the said witnesses to show cause why action be not initiated against them as detailed hereinabove. The Registry is directed to register the said notices as a separate petitions. Copy of this judgment be sent alongwith the notices and the respondents be directed to file their reply positively before the next date. List the matter before this Bench on 27th December, 2011.

Record of the Criminal Appeal shall not be sent back and retained in this Court and be attached with the new petition(s).