Banobi and anr. Vs. State of Maharashtra and ors. - Court Judgment

Excerpt:
- indian evidence act, 1872 section 3: [d.k. jain & r.m. lodha,jj] evidence of injured witnesses - credibility-large number of persons attacked deceased and injured witnesses -thus, it would not be possible for injured witnesses to attribute specific injury individually to each accused held, minor discrepancies in their evidence is not sufficient to shake their trustworthiness. testimony of said witnesses cannot be discarded on ground of non-mentioning of specific overt acts.section 3 : injured witnesses -testimony of injured witnesses found to be credible held, credibility of their deposition would not be affected merely because two of accused persons got acquittal. indian penal code, 1890 section 300: murder - common object village rivalry-accused persons, more than five, armed with deadly weapons formed unlawful assembly and assaulted deceased and injured witnesses - number of injuries were inflicted on deceased persons held, it can be inferred that accused shared common object of committing murder. plea that since deceased 1 and deceased 2 received only one and two fatal injuries respectively, common object at the most could be to cause injuries and not fatal injuries is not tenable. sections 302 & 149: murder - unlawful assembly village political rivalry non mention of charge under section149 - held, the particulars stated in charge nos. 4 and 5 are reasonably sufficient to give the appellants adequate notice of section 149 ipc although not specifically mentioned. thus, non-mentioning of section 149 in charge no. 4 and charge no.5 would not be a fundamental defect of an incurable illegality that may warrant setting aside the conviction and sentence of the accused. non-framing of a charge under section 149 ipc, on the fact of the charges framed against the appellants would not vitiate their conviction; more so when the accused have failed to show any prejudice in this regard. the present case is a case where there is mere omission to mention section 149 in charge nos. 4 and 5 which at the highest may be considered as an irregularity and since the appellants have failed to show any prejudice, their conviction and sentence is not at all affected. tenor of cross-examination of injured witnesses by the defence also rules out any prejudice to them. the offence, in the established facts and circumstance of the case, under section 302 read with section 149 ipc is implicit, the omission to mention section 149 ipc specifically in the charge nos. 4 and 5 cannot affect their conviction. in no way their conviction is rendered bad as the appellants has assembled together armed with axes and sickle and were parties to the assault on deceased and others. in a situation such as this it is not obligatory upon the prosecution to prove which specific overt act was done by which of the accused. - 1 was in possession of heroin as well as charas and that appellant no.ordernanavati, j.1. the appellants are challenging in this appeal, their conviction under section 21 of the narcotic drugs and psychotropic substances act, 1985. they have been convicted for keeping charas in their possession without any licence or permit. appellant no. 1 has been convicted also under section 21 for possessing heroin.2. the prosecution case was that acting on information that banobi - appellant no. 1 and her husband appellant no. 2 were keeping in their possession brown sugar and opium in their house and selling the same. p.i. sheikh along with lady police constable pramila and two panch witnesses raided their house about 2.45 p.m. on 28-11-88. from the house one packet of charas containing 13 grams and 700 ml. grams was found concealed in a hollow space near the hearth in that house. on search by lady police constable pramila, 13 small packets containing heroin were also found from the person of appellant no. 1. though appellant no. 1 was not present at that time, it was alleged that he alongwith his wife was in possession of those substances. on these allegations both the appellants were tried for the offence stated above.3. the trial court believed the evidence of p.w. 4 - p.i. sheikh, p.w. 1 - mohasin, the panch witness, and p.w. 2 lady police constable pramila and held that prosecution has successfully established that appellant no. 1 was in possession of heroin as well as charas and that appellant no. 2 was in possession of charas and that they did not have any licence or permit to possess the same. the trial court convicted them. the high court has confirmed their conviction as it also agreed with the appreciation of evidence by the trial court and the findings recorded by it.4. it was contended by the learned counsel for the appellants that the evidence as regards possession of charas by the appellants is inconsistent and ought not to have been relied upon. he submitted that as noted by the trial court and also by the high court, panch witness mohasin has not referred to the recovery of packet containing charas and p.w. 2 pramila has admitted that on search nothing was found from the house. this contention is really based upon misreading of the evidence of the three witnesses. p.i. sheikh has deposed about recovery of one packet containing charas from a hollow place near the hearth and lady police constable pramila has also stated that though during the first search nothing was recovered on further search they did find one packet containing charas from a hollow place near the hearth in that house. the panch witness mohasin has also stated that 13 small packets were found from the possession of appellant no. 1, in addition to one packet which was already found. he has further stated that panchnama was prepared on the site and whatever is stated in the panchnama is correct. he has admitted his signatures thereon. he has also proved the signatures of the accused on that panchnama. in his cross examination he denied that no search was made in his presence and nothing was found from that house. thus, if the evidence of the three witnesses is read closely and carefully it becomes apparent that their evidence is consistent as regards the find of the packet containing charas.5. it was next contended by the learned counsel for the appellants that while conducting the search of the person of appellant no. 1 there was non-compliance with the requirement of section 50 of the n.d.p.s. act and therefore we should not accept the evidence with respect to recovery of 13 small packets of heroin. the learned counsel for the respondent submitted that p.i. sheikh had not informed appellant no. 1 about her right to be examined in presence of a magistrate or a gazetted officer. the learned counsel is right in this behalf and therefore, the conviction of appellant no. 1 under section 21 of the act for possessing heroin will have to be set aside.6. it was next contended that the conviction of appellant no. 2 cannot be sustained as he was not present in the house when it was raided and the packet containing charas was found. both the trial court and high court have found that the appellant no. 2 was residing in the house along with his wife and the facts and the circumstances of the case justified such an inference. the only contention raised before the courts below in this behalf was that he had a dispute with his landlord and therefore he was falsely involved in this case at the instance of the landlord. appellant no. 1 has admitted that he was staying in that house. if considering these circumstances the courts below thought it fit to believe the evidence and infer that he was also in possession of the packet containing charas, it cannot be said that the view taken by the courts below is unreasonable.7. we, therefore, partly allow this appeal. conviction and sentence of appellant no. 1 for the offence punishable under section 21 of the act for possessing heroin is set aside. conviction of both the appellants and their sentence for the offence punishable under section 21 for possessing charas is confirmed.

Judgment:
ORDER

Nanavati, J.

1. The appellants are challenging in this appeal, their conviction under Section 21 of The Narcotic Drugs and Psychotropic Substances Act, 1985. They have been convicted for keeping charas in their possession without any licence or permit. Appellant No. 1 has been convicted also under Section 21 for possessing heroin.

2. The prosecution case was that acting on information that Banobi - appellant No. 1 and her husband appellant No. 2 were keeping in their possession brown sugar and opium in their house and selling the same. P.I. Sheikh along with Lady Police Constable Pramila and two panch witnesses raided their house about 2.45 p.m. on 28-11-88. From the house one packet of charas containing 13 grams and 700 ml. grams was found concealed in a hollow space near the hearth in that house. On search by lady Police Constable Pramila, 13 small packets containing heroin were also found from the person of appellant No. 1. Though appellant No. 1 was not present at that time, it was alleged that he alongwith his wife was in possession of those substances. On these allegations both the appellants were tried for the offence stated above.

3. The trial Court believed the evidence of P.W. 4 - P.I. Sheikh, P.W. 1 - Mohasin, the panch witness, and P.W. 2 lady Police Constable Pramila and held that prosecution has successfully established that appellant No. 1 was in possession of heroin as well as charas and that appellant No. 2 was in possession of charas and that they did not have any licence or permit to possess the same. The trial Court convicted them. The High Court has confirmed their conviction as it also agreed with the appreciation of evidence by the trial Court and the findings recorded by it.

4. It was contended by the learned Counsel for the appellants that the evidence as regards possession of charas by the appellants is inconsistent and ought not to have been relied upon. He submitted that as noted by the trial Court and also by the High Court, panch witness Mohasin has not referred to the recovery of packet containing charas and P.W. 2 Pramila has admitted that on search nothing was found from the house. This contention is really based upon misreading of the evidence of the three witnesses. P.I. Sheikh has deposed about recovery of one packet containing charas from a hollow place near the hearth and lady Police Constable Pramila has also stated that though during the first search nothing was recovered on further search they did find one packet containing charas from a hollow place near the hearth in that house. The panch witness Mohasin has also stated that 13 small packets were found from the possession of appellant No. 1, in addition to one packet which was already found. He has further stated that panchnama was prepared on the site and whatever is stated in the panchnama is correct. He has admitted his signatures thereon. He has also proved the signatures of the accused on that panchnama. In his cross examination he denied that no search was made in his presence and nothing was found from that house. Thus, if the evidence of the three witnesses is read closely and carefully it becomes apparent that their evidence is consistent as regards the find of the packet containing charas.

5. It was next contended by the learned Counsel for the appellants that while conducting the search of the person of appellant No. 1 there was non-compliance with the requirement of Section 50 of the N.D.P.S. Act and therefore we should not accept the evidence with respect to recovery of 13 small packets of heroin. The learned Counsel for the respondent submitted that P.I. Sheikh had not informed appellant No. 1 about her right to be examined in presence of a Magistrate or a gazetted officer. The learned Counsel is right in this behalf and therefore, the conviction of appellant No. 1 under Section 21 of the Act for possessing heroin will have to be set aside.

6. It was next contended that the conviction of appellant No. 2 cannot be sustained as he was not present in the house when it was raided and the packet containing charas was found. Both the trial Court and High Court have found that the appellant No. 2 was residing in the house along with his wife and the facts and the circumstances of the case justified such an inference. The only contention raised before the courts below in this behalf was that he had a dispute with his landlord and therefore he was falsely involved in this case at the instance of the landlord. Appellant No. 1 has admitted that he was staying in that house. If considering these circumstances the courts below thought it fit to believe the evidence and infer that he was also in possession of the packet containing charas, it cannot be said that the view taken by the courts below is unreasonable.

7. We, therefore, partly allow this appeal. Conviction and sentence of appellant No. 1 for the offence punishable under Section 21 of the Act for possessing heroin is set aside. Conviction of both the appellants and their sentence for the offence punishable under Section 21 for possessing charas is confirmed.