Criminal Appeal No. 196-SB of 2002 v. State of Punjab

345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 6 them. During the course of his cross-examination, Parveen Kumar, Sub Inspector, PW5, also stated, that it was Surinder Singh, Head Constable, who identified Ram Piara and Dyal, accused, while running away. Parsa Singh, Inspector, PW3, stated that, he knew Ram Piara and Dyal, accused, earlier, and, thus, he identified them. During the course of his cross-examination, Parsa Ram, Inspector, PW3, stated that, when Ram Piara, ran away, the Police party, was at a distance of 3-4 karams. He further stated that, Ram Piara and Dyal, accused, belonged to village Sahota, which is at a distance of 1 km, from the place of recovery. He did not state even a single word, as to how, he knew Ram Piara and Dyal, accused, earlier to the alleged recovery. He did not state, even a single word, that he had registered cases, against them, earlier to the present recovery, and that was why, he identified them, at the spot.

He did not state, even a single word, in his statement, that both these accused, were witnesses, in some other cases, which had been investigated by him. He did not state, even a single word, that these accused, used to come, to the Police Station, in connection with the work of other villagers, and that was why, he knew them. There was no source of light, at the site, when both these accused, allegedly ran away, from the spot. No identification parade, whatsoever, was held, by Parsa Singh, Inspector, PW3, during the course of investigation, to pin-point the identity of the accused. Both these accused, were arrested much later. Surinder Singh, Head Constable, PW7, during the course of his cross-examination, stated that, he did not Criminal Appeal No. 196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 7 remember, if he ever appeared, as a witness, against Dyal, accused.

He further stated that, he had not attended any social function, which was attended by Dyal, accused. He further stated that, in no other case, he had claimed, that he knew Dyal, accused. He further stated that, he got recorded, in his statement, under Section 161 of the Code of Criminal Procedure, that he knew Dyal, accused, when he was raiding his house. When his attention, was drawn, to his statement, under Section 161 of the Code of Criminal Procedure, this fact, was not found recorded therein. He further stated that, he got recorded, in his statement, under Section 161 of the Code of Criminal Procedure, that he had been raiding the house of Dyal, accused. When his attention, was drawn, to his statement, under Section 161 of the Code of Criminal Procedure, this fact, was not found recorded therein. He further stated that, he did not remember the case number, in which, the house of Ram Piara, accused, was raided by him.

He further stated that, he also did not remember the month and the year, in which, the said raid, was conducted. He further stated that he did not raid the house of Ram Piara, accused of his own. He further stated that he always joined the Investigating Officer, at the time of raiding the house of Ram Piara, but, he did not remember the name of the said Investigating Officer. He further stated that, he did not remember, as to whether, any entry, was made, in the Roznamcha, before leaving the Police Station, along with the Investigating Officer, while allegedly raiding the house of Ram Piara, in another case. He further stated that, he did not remember, as to Criminal Appeal No. 196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 8 whether, he ever appeared, as a witness, against the accused, nor did he remember, that he was associated, in investigation, in another case, against the accused.

He further stated that, no identification parade of the accused, was conducted, to pin-point the identity of Ram Piara and Dyal (accused). The cumulative reading of the statements of Parsa Singh, Inspector, PW3, and, Surinder Singh, Head Constable, PW7, clearly goes, to show, that Ram Piara and Dyal, accused, were not known to any member of the Police party. There was no possibility of the identification of both these accused, by any member of the Police party, especially when, there was complete darkness, as the alleged recovery, was effected, at about 4.00 AM, and, there was no source of light, at the spot. It was, therefore, a fit case, in which, the identification parade, was required, to be held, by the Investigating Officer, to pin-point the identity of the accused, but, he failed to do so. Under these circumstances, the identity of both these accused, as perpetrators of crime, was not at all established, beyond a reasonable doubt, by the prosecution, by producing cogent, convincing and reliable evidence.

No reliance, can be placed, on the statements of Parsa Singh, Inspector, PW3, Parveen Kumar, Sub Inspector, PW5, and, Surinder Singh, Head Constable, PW7, with regard to the identification of the accused, at the spot, for the reasons recorded above. It was held in Budhsen and Another Vs. State of U.P., AIR 1970 SC, 1321, that facts which establish the identity of an accused person, are relevant under Section 9. As a general rule, the substantive Criminal Appeal No. 196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 9 evidence of a witness is a statement made in the Court. The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. The evidence, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, the witness came to pick out the particular accused person, and the details of the part, which the accused played, in the crime, in question, with reasonable particularity.

The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses, in the Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held, during the course of investigation, with the primary object of enabling the witnesses, to identify persons, concerned, in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses, and also to furnish evidence, to corroborate their testimony, in the Court.

Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail, or some other place, and make statements, either express or implied, that certain Criminal Appeal No. 196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 10 individuals whom they point out are persons, whom they recognize, as having been concerned in the crime. The same do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :- “Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they happened to see him.

The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice.” The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case.

Since the identity of Ram Criminal Appeal No. 196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 11 Piara and Dyal, accused, as perpetrators of crime, was not proved, they are not connected with the instant case. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction and awarding sentence to the accused.

He did not furnish any explanation, on the aforesaid aspects of the matter. Once Santokh Ram, was found in possession of seven gunny bags, each containing 40 kgs poppy husk, statutory presumption, under Sections 35 and 54 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, it was for him, to rebut that statutory presumption. He, however, failed to rebut the same, by leading evidence. Section 54 of the Act ibid reads as under :- "Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act, in respect of:- any narcotic drug or psychotropic a) substance or controlled substance; any opium poppy, cannabis plant b) or coca plant growing on any land which he has cultivated; c) any apparatus specially designed or any group of utensils specially Criminal Appeal No.

196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 13 adopted for the manufacture of any narcotic drug or psychotropic substance or controller substance; or any materials which have d) undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. " 12-A. Section 35 which relates to the presumption of culpable mental state, is extracted as under :- "Presumption of culpable mental state:- (1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation:- In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. " 12-B. From the conjoint reading of the provisions of Sections 54 and 35, referred to hereinbefore, it becomes abundantly clear, that once an accused, is found to be in possession of a contraband, he is Criminal Appeal No. 196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 14 presumed to have committed the offence, under the relevant provisions of the Act, until the contrary is proved. According to Section 35 of the Act ibid, the Court shall presume the existence of mental state, for the commission of an offence, and it is for the accused to prove otherwise.

In Madan Lal and another Vs. State of H. P. 2003 SCC (Crl.) 1664 it was held as under:- The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.”

In Megh Singh Vs. State of Punjab, 2003 (4) RCR (Criminal) 319, on 22.2.1993, three persons were found sitting, on the gunny bags, containing poppy husk. The appellant was arrested, while the other two fled. 25 bags containing poppy husk, were found, at the spot, which were seized. The appellant was convicted and sentenced by the trial Court, and the appeal filed by him, was also dismissed by the High Court. The Apex Court, upheld the conviction and sentence of the appellant, observing that he was in conscious possession. The word ‘conscious’ means awareness about a particular fact. It is the state of mind, which is deliberate or intended. It was further held that possession, in a given case, need not be physical possession, but can be constructive, having power and control over the article, while the person whom physical possession is given holds it subject to that power or control. The facts of Madan Lal's case (supra) are almost similar and identical to the facts of the present case.

The principle of law, laid down, in Madan Lal's and Megh Singh's cases (supra) is fully applicable to the facts of the present case. In the instant case, in his statement, under Section 313 Cr.P.C., Santokh Ram, accused/appellant, took up the plea of false implication. As stated above, the accused miserably failed to rebut the statutory presumption, referred to above. Thus, his conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel Criminal Appeal No. 196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 16 for the appellant, being without merit, must fail, and the same stands rejected.

196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 18 reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex. PJ, which clearly proves that the seals on the samples, were intact, on their arrival, in the Laboratory, and tallied with the sample seals sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293 of the Code of Criminal Procedure. The delay in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different.

In Narinder Singh @ Nindi Vs. State of Punjab 2005 (3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In State of Orissa Vs. Kanduri Sahoo, 2004(1), RCR (Criminal), 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. It was held, in the aforesaid cases, that in the face of the other cogent, convincing, reliable, and trustworthy evidence produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be Criminal Appeal No. 196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 19 ruled out. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 07 days, in sending the samples to the office of the Chemical Examiner, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.

Since Bhupinder Singh, independent witness, had been won over by the accused, there was no necessity of examining him, as the Additional Public Prosecutor, for the State, very well knew that, if he examined Bhupinder Singh, independent witness, he would cause damage, to the case of the prosecution. The discretion, Criminal Appeal No. 196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 20 exercised by the Additional Public Prosecutor, for the State, in giving up Bhupinder Singh, could not be said to be arbitrary or capricious. On the other hand, the decision, taken by the Additional Public Prosecutor, for the State, could be said to be bonafide. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material, or even if, it is known that he/she has been won over or terrorized.

In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference could be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the officials were examined, as witnesses for the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and another Vs.

State of Gujrat Criminal Appeal No. 196-SB of 2002 Criminal Appeal No. 345-SB of 2002 Criminal Appeal No. 1109-SB of 2002 21 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined by it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim's side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the said cases, is fully applicable to the facts of the present case. Even otherwise, the other evidence produced by the prosecution is reliable. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.