Tilak Raj vs State

This is a criminal revision petition directed against the judgment and order of learned Additional Sessions Judge, Jammu dated 30th September, 1982 passed in Criminal Appeal No. 18 of 1980 whereby the learned Additional Sessions Judge has maintained the conviction and sentence passed under section 48 Exercise Act as recorded by learned Judicial. Magistrate, SubRegistrar, Jammu on 17th October, 1980, with the only modification that the fine of Rs. 4,000/ imposed by the trial court was reduced to Rs. 500/ but the rigorous imprisonment of one year was maintained.

Shorn of details, the case of prosecution is that the appellant was trading in Narcotics and was having considerable quantity of Charas, Opium in his possession. On receiving such information in Police Station, Gandhi Nagar, Jammu, the concerned Police Officer rushed to raid the house of the petitioner. Before making such raid, he sought presence of some witnesses of that area who were residing in the neighbourhood of the petitioner and in their presence entered the house of the petitioner and recovered 2 kilograms and 4 grams of Opium and 403 grams of Charas from an. Almirah, which was kept in the residential room of the petitioner. The almirah was unlocked. It contained soap cakes and beneath them illegal charas and Opium was stored. However, in accordance with the procedure established by law, he seized both the items there and then, produced it before the Magistrate and, thereafter, it was sent to the Chemical Examiner and even the seal was also produced before the Court.

Report of the Chemical Examiner after due examination was received who certified that the parcels contained Opium and charas, hence the challan was produced before the Judicial Magistrate, SubRegistrar, Jammu who, after recording evidence and hearing the parties, convicted the petitioner under section 48 Excise Act and sentenced him to one year's rigorous imprisonment with fine of Rs.4,000/. This judgment and order dated 17th October, 1980 was appealed against in the court of Additional Sessions Judge, Jammu who, after hearing the parties and going through the record, maintained the conviction and sentence of one year's rigorous imprisonment, but reduced the fine of Rs. 500/ only.

The judgment of learned Sessions Judge is assailed here on various ground's firstly, on the ground that the courts below have erred in convicting the petitioner on the sole, testimony of the Investigating officer. However, the eye witnesses did not support the prosecution version and were declared hostile. It has been contended that even the statement of the I.O. is not devoid of selfcontradictions. Samples were not duly sent to the Chemical Examiner and the Opium and Charas has not been identified. Thirdly, the trial court has not afforded any reasonable opportunity to the appellant to adduce evidence in defence.

Heard Learned counsel for the parties at length. Entire Record alongwith lower court file, I have perused, including the evidence recorded by the trial court. LC for the petitioner has vehementally argued that three eye witnesses have been examined, namely, Sukhdev Singh, Nanak Singh and Himat Singh in addition to Shri Jagmohan, SHO Police Station, who has investigated the case, but all the three eye witnesses have not supported the prosecution case and have been declared hostile. So there remains the solitary statement of the IO. which is not substantiated by any other evidence. According to him, it will not be safe to believe the statement of the sole witness who is I. O. in the case when such evidence is not corroborated by any other evidence. According to him, the statement of eye witnesses cannot be relied on as they have been declared as hostile and their statements have not been treated effaced by the trial court as well as by the appellate Court, so the courts have erred in basing their judgments on these witnesses and have erred in convicting the accused petitioner.

I have heard LC for the otherside also regarding these points and I do not feel myself in agreement with the argument advanced by LC for the petitioner. It is a fact that two of the eye witnesses have been declared hostile, but the statement of a hostile witness cannot be discarded altogether and his statement cannot be effaced in toto. Section 154 of the Evidence Act deals with hostile witnesses. It is settled law that it is the duty of the court in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then the court is within its bounds to uphold the prosecution case to the extent it considers safe and trustworthy. The evidence of a hostile witness in law is not to be discarded in toto. It is the bounden duty of the court to extract the truth from the statements of such witnesses and not to discard the evidence in toto solely on the ground that the witness has been declared hostile. The argument of the learned counsel for the petitioner that the court below have relied on the sole evidence of the I.O. which too is impeachable and which is not supported by any other witness because the other witnesses have been declared hostile is not tenable in law. The courts below had not to see whether there is corroboration to the statementof the I.O. or not.

They had to extract the truth from the eye witnesses who either were declared as hostile or did not support the prosecution case. As I have stated that their statements cannot be effaced from the record only for the reason that the witnesses have been declared hostile, but the court can believe a part of their statements which the court considers to be true. In case the court believes the statements of hostile witnesses in part, that part is to be seen whether it is corroborated or not. Here in this case the courts below have believed the part of the statements of witnesses and that is fully corroborated by the I.O. whose statement is unimpeachable and has not been shakened in cross examination and more so no malice has been attributed to the I.O. The argument of counsel for the petitioner that the I.O's statement is not corroborated is factually wrong. Their lordships of the Apex Court in Satpal Vs. Delhi Administration (AIR 1976 SC 294) have held as under:

From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated washed off the record altogether. It is for the Judge of fact to consider hi each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witnesses, as a whole, with due caution and care, accept, in the light of the other evidence on the record that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process the witness stands squarely and totally discredited, the judge should, as matter of prudence, discard his evidence in toto.

In Bhagwan Singh Vs. State 01 Haryana, reported in AIR 1976 Cr. L. J. 203, it has been held that the fact that the witness was declared hostile did not completely efface his evidence. It remains admissible in the trial, if it is corroborated by other reliable evidence. There was no legal bar to base his conviction upon it. In view of the above decisions and the position of settled law regarding this point, the factual position is that Nanak Singh, who is one of the eye witnesses, in his statement has clearly admitted first that he was called by the Police Officer and was told by him that they are going to raid the house of the petitioner. He accompanied the Police Officer to the house, entered the house wherein from an Almirah the Opium and Charas was seized. Then at the same time he has given a turn to his statement immediately while saying that no, charas and opium had already been seized by the Police Officer. The Trial Judge has written a note on his statement that the witness wants to conceal the real facts and he tells white lie. The witness has identified his signature on the seizure memo EXPW 4/ 1, but has denied to have been read over the statement to him before taking his signature. However, in cross examination he has admitted that he is a teacher for the last twenty six years. He has never signed a paper without reading it and has laid stress that he signs a document only when he goes through it minutely. He has admitted that Police never applied any force on him to sign it nor any incentive was promised to be given to him for signing the paper. He has even admitted that even in the court room of trial court, he was discussing with the appellant as to in what manner he is going to give the evidence. This statement cannot be brushed aside at all. The witness has admitted that he accompanied the Police at the time of the raid and later on he has changed his mind. So the court has rightly believed his statement to the extent that he accompanied the Police Party and signed the seizure list, witnessed the seizure of the seized articles. Similarly, Sukhdev Singh is another eye witness. He too has identified his signatures on the seizure list EXPW 4/1. But has stated that he was made to sign the papers in the Police Station by the Police. This witness also was declared hostile and prosecution was allowed to cross examine him. In the cross examination he has admitted that EXPW 4/1 was written in his presence but it was not read over to him. He has admitted that no pressure was used by the Police to get his signatures. He was not beaten nor he was threatened and nor he was promised any incentive for signing the papers. He has admitted that he signs a paper only when he goes through it or it is read over to him. Similarly, Himat Singh also has stated that he was constructing a house. Police Constable came to call him. He went to the house of the petitioner, but he states the Police Party and the petitioner were on the outer door of the house. Police told him that they have seized some illegal material so he was asked to be as a witness. He was carried to the Police Station where he signed the seizure list EXPW 4/1. The charas was weighed in his presence. In cross examination he has stated that raid was not conducted in his presence, but charas was sealed in his presence and the seizure list was not read over to him. He has admitted that he is a government teacher for the last eleven years. He has admitted that he has never signed a paper in his life without reading it except this seizure list. After going through the evidence of this witness also, it does not appeal to reason, that the part of the statement of the witness is correct in which he says that he signed the papers without going through it, or the raid was not conducted in his presence. Apparently, it appears that he wants to conceal the facts. After all a person who is a government teacher for the last eleven years, can it be believed that he has signed the paper keeping his eyes shut. I think both the courts below have rightly believed the I.O. who in his statement has categorically stated that he called all the three witnesses and conducted the raid in their presence. Statement of Himat Singh cannot be treated as effaced because there is corroboration of I.O., also of Nanak Singh who first admits that in his presence raid was conducted and moreover Sukhdev Singh and Himat Singh and even Nanak Singh have admitted that they never sign a paper without first going through it. All the witnesses have admitted that they were not forced to sign the seizure, they were not offered any incentive for signing it. The I.O. has unimpeachably narrated all the facts regarding the conduct of raid. According to him, all these three witnesses are residing in the same vicinity and are neighbours of the petitioner. In their presence raid was conducted. Nanak Singh entered the room first, opened the door of Almirah. He has not been shaked at all in the cross examination. Counsel for the petitioner is misconceived in saying that both the courts have believed the I.O. who is not corroborated, but the fact here is different. The real fact is that the courts below have believed the evidence of Nanak Singh and Sukhdev Singh to the extent of conducting a raid in their presence and their signing the siezure list. Similarly they have believed the statement of Himat Singh also to that extent and they have rejected the portion of statements of this witness to the extent that charas and opium was not seized in their presence. These statements are corroborated by I.O. against whom no malice has been pleaded or proved and whose statement has not been shaked in cross examination.

His statement remains unrebutted, so there was no course left to the courts below to believe the statements of this witnesses. As I have already stated that the statement of hostile witnesses cannot be effaced in toto. The court has with due care and caution weighted the statements of such witnesses which are substantially and materially corroborated by the I.O.

For these reasons, therefore, the argument of LC for petitioner is held not tenable in law.

Second point was not at all argued by LC for the petitioner, though it finds place in the revision petition. However, both the courts below have found that the Chemical Examiner has given his report regarding the authenticity of being Charas and Opium. No procedural error has been agitated in sealing or sending it to the Chemical Examiner. This point also does not have any substance. It is why the LC for petitioner has chosen not to touch this point.

Regarding the plea taken in the pleadings of the revision petition that the petitioner was not given opportunity to produce the evidence, this point too has not been argued by the counsel for appellant, probably because there is a clear cut statement of the accused after the evidence was put to him when he was asked whether he wants to produce the evidence he has sated 'no'. So it cannot be said that he was not given an opportunity to produce the evidence. The fact is that he has not availed of this opportunity.

Lastly, the counsel for petitioner has pleaded that the prosecution has failed to prove the conscious possession of the seized articles by the petitioner. According to him, it was the bounden duty of the prosecution to prove that the house from which these article were seized exclusively belonged to the petitioner. He has cited some authorities in this regard, including, Ram Rattan appellant Vs. State of Punjab (AIR 1979 SC 1249).

The above case also related to the conviction under Section 9 (1) of OPIUM Act. Conviction by the Apex Court was set aside on the ground that nothing was on record to indicate that opium recovered from the house was in conscious possession of the petitioner or that he was present in the house, so the High Court had committed an error in upholding the sentence. I have gone through this judgment. Basically the prosecution case was that Opium was recovered from the store room of the house. Recovery made in the raid was not challenged. Challenge on behalf of the appellant was that the prosecution has not proved that the appellant was in conscious possession of the opium recovered from the house. Raid was conducted when the appellant was not there in the house. The only person present was some Jinardan PW1. Appellant had gone to Vaishnov Devi five to six days before. According to the witness appellant was the tenant of the house, but the other witnesses did not support him on this point.

According to the witness, PW6 land lord, the appellant was not a tenant. According to PW6 at the time of construction, the house was let out by his servant Som Nath to a tenant. Som Nath was also examined who stated that house was let out to one Babu Ram. Babu Ram is uncle of appellant. So there was a suspicion both about the ownership and the possession and it was admitted that at the time of raid the appellant was not even in the vicinity of the house not to speak of the house itself from which the recovery was made. So the present case is quite different. In the above case whole thing was in pelmel, nobody knew who was the tenant and who was the owner and who was actually residing there. Appellant had gone five to six days before the raid to Vaishnov Devi. It is in this context that the Apex Court has held that it was the duty of prosecution to prove the conscious possession of the appellant. So the facts of this case are quite different and not applicable to the present case. In the present case no such circumstance has arisen. No suspicion about the possession of the house has been raised and even it has not been denied that the appellant was not there at the time of raid. The seized articles have been recovered from an almirah which was installed in the room of the appellant. So in this case LC is not right in saying that the prosecution should have proved that the house was in exclusive possession of the appellant or that he was in conscious possession of the articles. If such a dictum is taken to be true then the police officers have to start parallel enquiry regarding the ownership, entitlement and the possession of the house. It is true that the Police has to prove the exclusive possession of the petitioner and the conscious possession of the articles if it comes in the evidence that the house is owned or possessed by persons other than the petitioner also. If no dispute arises regarding the possession of the house and the articles are recovered from a room, the possession of which is not disputed by the petitioner, I do not think that the police has to make a separate issue for the possession and to prove it. Similarly another case was cited by the petitioner's counsel viz. Mehtab Singh versus State of J&K AIR 1959 J&K Page 74. In this case also the Apex Court has held that the word 'possession' as mentioned in Section 48 of the Excise Act must necessarily imply that accused is in conscious possession before he can be convicted. The facts of this case also are different to the present one. The bottle of liquor was recovered beneath the Chowki which was kept in the shop and the appellant in that case raised the point that customers were coming and going to his shop and they would sit on the Chowki. It was an open place, any body could have kept that bottle underneath the Chowki. The Sessions Judge held that the onus was on the accused appellant to prove that it was not in his possession. This court held that no onus was laid on the prosecution to prove that the bottle was in possession of the

appellant. As I have earlier stated, the facts of the present case before me are quite different. The seized articles were recovered from the Almirah which was installed in the residential room of the appellant. So I think that in this case prosecution was not laid with extra responsibility to prove that the Almirah was in conscious possession of the appellant when no such suspicion has come in evidence, nor it has come in the evidence that the Almirah or the room was in possession of persons other than the petitioner.

For these reasons, therefore, I see no ground to interfere in the judgment passed by the learned Additional Judge. Accordingly, this revision petition is dismissed. The petitioner (convict) is directed to surrender before the Additional Registrar, High Court of J&K, Jammu within three days from the date of this judgment to undergo the sentence, failing which non bailable warrants shall be issued by the Add!. Registrar against him.