Himachal Pradesh High Court
State Of H.P vs Lekh Raj on 25 May, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 381 of 2011 Reserved on : 10.05.2018 .
Decided on: 25.05.2018.
State of H.P. ...Appellant.
Versus
Lekh Raj ...Respondent.
_________________________________________________________________ Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1 No. For the Appellant r : to Mr. Sudhir Bhatnagar and Mr. Vinod Thakur, Addl. A.Gs. with Mr. J.S. Guleria and Mr. Bhupinder Thakur, Dy. A.Gs.
For the Respondent : Mr. N.K. Thakur, Sr. Advocate, with Mr. Divya Raj Singh, Advocate.
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Justice Tarlok Singh Chauhan, Judge Aggrieved by the acquittal of the respondent for the offence punishable under Sections 20 of the Narcotic Drugs & Psychotropic Substances (for short the 'NDPS Act'), the State has filed the instant appeal.
2. The case of the prosecution, in brief, was that on the night intervening on 20/21.10.2010, HC Varinder Singh alongwith HC Kartar Singh, C. Aslam Mohammad and C. Yakoob Mohammad was present near Tikari bridge, Lasuin Chowk at about 1:25 am for Nakabandi. In the meantime, respondent was 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 2 seen coming from Lasuin road towards Tikari bridge side but having seen the police party in uniform, the respondent turned .
back and started running away. The respondent was asked to stop but he did not do so and, therefore, was chased. While fleeing away, he started pelting stone on the police party and after running a distance of 50-60 meters, respondent jumped towards dhank and fell down 7-8 feet below the road and, thereafter, was overpowered. The respondent had green colour bag in his right hand. He was informed that he was suspected of carrying narcotics and, therefore, his bag was required to be searched. He was apprised of his legal right to be searched before a Magistrate or gazetted officer but the respondent consented to be searched by the police party at the spot and gave consent vide memo Ext.PW1/A. However, before conducting search, the police officials gave their search to the respondent vide memo Ext. PW-1/B. Since, the place was secluded one and moreover it was night, no independent witness could be associated and the bag was searched in the presence of the police officials. On opening of the bag, black colour hard substance in the shape of candle was recovered, which on smelling and experience was found to be 'Charas'. The police party was having scale and weights and the charas so recovered was weighed and it was found to be 4 kgs. and put in the same bag which was then wrapped in a piece of cloth and sealed with ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 3 five seals of impression 'V'. Specimen of sample seal Ex.PW1/C was drawn on a piece of cloth. NCB forms in triplicate were .
completed and the seal was embossed thereon and thereafter handed over to C. Kartar Singh. The case property was thereafter taken into possession vide memo Ext. PW-1/D. Rukka Ext.PW-
12/A and sent to the police station through C. Aslam Mohammad No. 311 for registration of the case and the copy of the rukka was handed over to C. Yakoob Mohammad No. 565 for delivering the same to S.P., Chamba. On the basis of rukka FIR Ext.PW-6/K was registered and after registration of the FIR, case file was handed over to C. Mohammad Aslam who delivered the same to HC Varinder Singh at 4:40 am.
3. After inspection of the spot, spot map Ext.PW-12/B was prepared. Statements of the witnesses were recorded as per their versions. After interrogation of the respondent, he was arrested vide memo Ext.PW-12/D and thereafter his personal search for his personal belongings were taken vide Ext. PW-12/E.
4. After completion of investigation HC Varinder Singh, HC Kartar Singh, C. Yakoob Mohammad, C. Aslam Mohammad alongwith respondent came to CHC Tissa. HC Kartar Singh and C. Yakoob Mohammad alighted from the vehicle at Kapadi Gala. At 5:30 am, HC Varinder Singh and C. Aslam Mohammad accompanied the respondent and reached CHC, Tissa where the respondent pretended to have a strong urge for urination and ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 4 while passing urine, respondent picked up a stone from the field and hit the same on the head of IO/HC Varinder Singh, who .
sustained injuries. While jumping from dhank the accused had also sustained injuries and, therefore, was taken inside CHC but the Medical Officer was at his residence, as such the respondent was taken to the residence of the Medical Officer Jaswant Singh, who issued MLC Ext.PW-11/B. Thereafter, the I.O. got his prescription slip prepared for the injuries sustained on his head and was advised stitches on the wound by the Medical Officer.
Thereafter, I.O. went in the room of the nurse alongwith C. Aslam Mohammad and respondent and while the wound was being stitched, the respondent taking advantage fled away from the duty room of the nurse, after kicking C. Aslam Mohammad who was standing on the door. Then the respondent was searched for about five hours but could not be found. In these circumstances, I.O. reached at police station at 11:30 am and handed over the parcel of case property, NCB forms, sample seal to SHO for resealing. SHO B.M. Sharma resealed the parcel in the presence of C. Ravinder Singh and C. Sunil Kumar by affixing five seals of impression 'R' and embossed seal 'R' on NCB forms Ext.PW-6/A and took specimen of seal 'R' Ext.PW-6/B on a piece of cloth and prepared reseal memo Ext.PW-6/C and then handed over the seal to C. Ravinder Singh. He, thereafter, deposited the case property I.e. parcel, NCB forms and sample seals with MHC with ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 5 direction to send the same to FSL, Junga and report Ext.PW-6/E to this effect was made. I.O. Varinder Singh entered this entry in .
the daily diary report No. 19-A Ext.PW-6/G on the basis of which FIR No. 100 under Sections 224, 332 and 353 Ext.PW-10/N was also registered against the respondent. The MHC entered the aforesaid case property after the same was deposited to him at serial No. 232 of Malkhana register extract whereof is Ext. PW-
6/D. On 22.10.2010, MHC PW6 Ravinder Singh handed over the aforesaid parcel duly sealed with five seals each of impression 'V' & 'R' alongwith sample seals, seizure memo, copy of FIR and NCB forms to C. Naresh Kumar vide RC No. 115/10 on 23.10.2010, who deposited the same in safe condition at FSL, Junga and handed over the receipt to MHC. Special report of the case Ext.PW-4/B was prepared on 23.10.2010 and sent to S.P. through C. Mohammad Aslam which was deposited with PW-4 HC Subhash Chand, Reader to S.P. at 10:10 am. On receipt of Chemical Examiner report Ext.PX, the exhibit was extract of cannabis, the respondent came to be challaned.
5. The respondent was challaned for commission of offence punishable under Section 20 of the Act to which he pleaded not guilty and claimed trial.
6. The prosecution examined as many as 14 witnesses and on completion of its evidence the respondent was examined under Section 313 Cr.P.C. where the defence of the accused ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 6 denied in simplicitor. He claimed to have falsely implicated but no evidence in defence was led by him.
.
7. As observed earlier, the learned Special Judge acquitted the accused, constraining the State to file the instant appeal.
8. It is vehemently argued by the learned Deputy Advocate General that the findings recorded by the learned Court below are perverse inasmuch as it has failed to appreciate in its proper perspective the statements of the witnesses, more particularly, PW1, PW2, PW3, PW8 and PW12.
9. On the other hand, Shri N.K. Thakur, learned Senior Advocate, duly assisted by Mr. Divya Raj Singh, learned Advocate would contend that no grounds for interference are made out, therefore, the appeal should be dismissed, especially, when the learned Special Judge has meticulously evaluated the evidence and only thereafter acquitted the respondent.
We have heard learned counsel for the parties and have gone through the records of the case.
10. At the outset we may notice that the main reason for acquittal of the respondent is on account of material contradictions in the prosecution case, which according to the learned Special Judge affected the core of the prosecution case.
Therefore, this Court would first consider the scope and ambit of the appeal against the acquittal.
::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 711. As regards material contradictions, it is more than settled that while appreciating evidence, the Court has to take .
into consideration whether the contradictions/ omissions are of such magnitude that they are materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case cannot be made a ground to reject the evidence in its entirety. The trial Court after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course of action, would not be justified in reviewing the same again without justifiable reasons. But the said provision where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. Even though the normal discrepancies are bound to be there due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition and would not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 812. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of .
the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
13. As regards the scope of interference in appeal arising out of an order of acquittal, it is well established principle of law, consistently re-iterated and followed by all the Courts is that while dealing with a judgment of acquittal, an appellate Court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court are perverse or otherwise unsustainable. Even though the appellate Court is entitled to consider, whether in arriving at a finding of fact, the trial Court has placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration the evidence brought on record contrary to law; the appellate Court should not ordinarily set-
aside a judgment of acquittal in a case where two views are possible, though the view of the appellate Court may be the more probable one. The trial Court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses.
::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 914. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right .
and subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence of this Country. The appellate Court has to bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Therefore, interference with the decision of the trial Court cannot be interfered with in a casual or cavalier manner where the other view is possible, the same should be avoided, unless there are good reasons for such interference. It is only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, that the appellate Court can interfere with the order of acquittal.
15. As regards the same, it can be inferred and drawn where the Court has arrived at a finding of fact by ignoring or excluding the relevant material or has taken into consideration the irrelevant/inadmissible material. A finding may be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
16. The law on the subject has been succinctly dealt with by the Hon'ble Supreme Court in Ghurey Lal vs. State of U.P. 2008 (10) SCC 450, in the following terms:-
::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 1043. The earliest case that dealt with the controversy in issue was Sheo Swarup v. King Emperor AIR 1934 PC 227.
In this case, the ambit and scope of the powers of the .
appellate court in dealing with an appeal against acquittal has been aptly elucidated by the Privy Council. Lord Russell writing the judgment has observed as under: (at p. 230):
"...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses...."
The law succinctly crystallized in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of re- appreciating and re- evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill- founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.
44. This Court again in the case of Surajpal Singh and Ors. v. State AIR 1952 SC 52, has spelt out the powers of the High Court. The Court has also cautioned the Appellate Courts to follow well established norms while dealing with appeals from acquittal by the trial court. The Court observed as under:
"7. It is well established that in an appeal under Section 417 Criminal P.C., the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused was further ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 11 reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."
.
This Court reiterated the principles and observed that presumption of innocence of accused is reinforced by an order of the acquittal. The appellate court could have interfered only for very substantial and compelling reasons.
45. In Tulsiram Kanu v. State AIR 1954 SC 1, this Court explicated that the appellate court would be justified in reversing the acquittal only when very substantial question and compelling reasons are present. In this case, the Court used a different phrase to describe the approach of an appellate court against an order of acquittal. There, the Sessions Court expressed that there was clearly reasonable doubt in respect of the guilt of the accused on the evidence put before it. Kania, C.J., observed that it required good and sufficiently cogent reasons to overcome such reasonable doubt before the appellate court came to a different conclusion.
46. In the same year, this Court had an occasion to deal with Madan Mohan Singh v. State of Uttar Pradesh AIR 1954 SC 637, wherein it said that the High Court had not kept the rules and principles of administration of criminal justice clearly before it and that therefore the judgment was vitiated by non-advertence to and mis-appreciation of various material facts transpiring in evidence. The High Court failed to give due weight and consideration to the findings upon which the trial court based its decision.
47. The same principle has been followed in Atley v. State of U.P. AIR 1955 SC 807, wherein the Court said:
::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 12"5....It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the .
accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal."
48. The question was again raised prominently in Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217. Bose, J. expressing the majority view observed (at p.220):
"1....It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong; Ajmer Singh v. State of Punjab AIR 1953 SC 76; and if the trial Court takes a reasonable view of the facts of the case, interference under Section 417 is not justifiable unless there are really strong reasons for reversing that view.
49. In Balbir Singh v. State of Punjab AIR 1957 SC 216, this Court again had an occasion to examine the same proposition of law. The Court observed as under:
"12.....It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses must also be kept in mind, and there must be substantial and compelling ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 13 reasons for the appellate Court to come to a conclusion different from that of the trial Judge."
50. A Constitution Bench of this Court in M.G. Agarwal v.
.
State of Maharashtra AIR 1963 SC 200, observed as under:
There is no doubt that the power conferred by Clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by Clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court s powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled for the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence....
The test suggested by the expression "substantial and compelling reasons" should not be construed as a formula which has to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterize the findings recorded therein as perverse.
The question which the Supreme Court has to ask itself, in appeals against conviction by the High Court in such a case, is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt, ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 14 and that the contrary view taken by the trial Court was erroneous. In answering this question, the Supreme Court would,no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the .
High Court.
51. In Noor Khan v. State of Rajasthan AIR 1964 SC 286, this Court relied on the principles of law enunciated by the Privy Council in Sheo Swarup (supra) and observed thus:
"Sections 417, 418 and 423 give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
52. In Khedu Mohton and Ors. v. State of Bihar 1970 (2) SC 450, this Court gave the appellate court broad guidelines as to when it could properly disturb an acquittal. The Court observedas under:
"3. It is true that the powers of the High Court in considering the evidence on record in appeals under Section 417, Cr. P.C. are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the presumption of- innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 15 acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal.
(emphasis supplied) .
53. In Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra 1973 (2) SCC 793, the Court observed thus:
"5...An appellant aggrieved by the overturning of his acquittal deserves the final court s deeper concern on fundamental principles of criminal justice....But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration, In our view the High Court s judgment survives this exacting standard.
54. In Lekha Yadav v. State of Bihar 1973 (2) SCC 424, the Court following the case of Sheo Swarup (supra) again reiterated the legal position as under:
"6......'3.... The different phraseology used in the judgments of this Court such as-
(a) substantial and compelling reasons:
(b) good and sufficiently cogent reasons;
(c) strong reasons.
are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 16 order of acquittal but should express the reasons in its judgment which led it to hold that the acquittal was not justified.
.
55. In Khem Karan and Ors. v. State of U.P. and Anr. 1974 (4) SCC 603, this Court observed:
"5...Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony.
56. In Bishan Singh and Ors. v. State of Punjab 1973 (3) SCC 288, Justice Khanna speaking for the Court provided the legal position:
"22. It is well settled that the High Court in appeal under Section 417 of the CrPC has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless is be found expressly stated be in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; & (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.
57. In Umedbhai Jadavbhai v. State of Gujarat 1978 (1) SCC 228, the Court observed thus:
"6. In an appeal against acquittal, the High Court would not ordinarily interferewith the Trial Court's conclusion unless there are compelling reasons to do so inter alia on account of manifest errors of law or of fact resulting in miscarriage of justice."::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 17
58. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, the Court observed thus:
.
It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.
"A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959 Criminal Law Review 584.] {emphasis supplied}
59. In Tota Singh and Anr. v. State of Punjab 1987 (2) SCC 529, the Court reiterated the same principle in the following words:
"This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that nointerference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 18 taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.
(emphasis supplied) .
60. In Ram Kumar v. State of Haryana 1995 Supp. (1) SCC 248, this Court had another occasion to deal with a case where the court dealt with the powers of the High Court in appeal from acquittal. The Court observed as under:
"15...the High Court should not have interfered with the order of acquittal merely because another view on an appraisal of the evidence on record was possible. In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379 (sic 386) CrPC are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate court in justifying a finding of fact arrived at by a judge who had the advantage of of seeing the witness. No doubt it is settled law that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see whether the conclusions recorded by the Trial Court in acquitting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality or the conclusion recorded by the Trial Court are such which could not have been possibly arrived at by any Court acting reasonably and judiciously which may in other words be characterized as perverse.
61. This Court time and again has provided direction as to when the High Courts should interfere with an acquittal. In Madan Lal v. State of J&K 1997 (7) SCC 677, the Court observed as under:
::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 19"8. ...that there must be "sufficient and compelling reasons" or "good and sufficiently cogent reasons" for the appellate court to alter an order of acquittal to one of conviction...."
.
62. In Sambasivan and Ors. v. State of Kerala 1998 (5) SCC 412, while relying on the case of Ramesh Babulal Doshi (Supra), the Court observed thus:
"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.
63. In Bhagwan Singh and Ors. v. State of M.P. 2002 (4) SCC 85, the Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court observed as under:
"7. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge madeguidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided.
64. In Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., 2002 (6) SCC 470, this Court again had an occasion to deal with the settled principles of law ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 20 restated by several decisions of this Court. Despite a number of judgments, High Courts continue to fail to keep them in mind before reaching a conclusion. The .
Court observed thus:
"10. The principles to be kept in mind in our system of administration of criminal justice are stated and restated in several decisions of this Court. Yet, sometimes High Courts fail to keep them in mind before reaching a conclusion as to the guilt or otherwise of the accused in a given case. The case on hand is one such case. Hence it is felt necessary to remind about the well-settled principles again. It is desirable and useful to remind and keep in mind these principles in deciding a case.
11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.
12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 21 accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of .
acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.
(emphasis supplied)
65.In C. Antony v. K.G. Raghavan Nair 2003 (1) SCC 1had to reiterate the legal position in cases where there has been acquittal by the trial courts. This Court observed thus:
"6. This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court.
66. In State of Karnataka v. K. Gopalkrishna 2005 (9) SCC 291, while dealing with an appeal againstacquittal, the Court observed:
"17...In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 22 illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal.
.
67. In The State of Goa v. Sanjay Thakran 2007 (3) SCC 755, this Court relied on the judgment in State of Rajasthan v. Raja Ram 2003 (8) SCC 180 and observed as under:
"15. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.... The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.
The Court further held as follows:
" 16. it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below.
68. In Chandrappa and Ors. v. State of Karnataka 2007 (4) SCC 415, this Court held:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 23 may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very .
strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
69. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittalunder Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty.
The accused possessed this presumption when he was before the trial court. The trial court s acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.
::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 2470. In light of the above, the High Court and other appellate courts should follow the well settled principles .
crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court s acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court s decision. "Very substantial and compelling reasons" exist when:
i) The trial court s conclusion with regard to the facts is palpably wrong;
ii) The trial court s decision was based on an erroneous view of law;
iii) The trial court s judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court s judgment was manifestly unjust and unreasonable;
vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
17. Bearing in mind the aforesaid exposition of law and parameters laid therein, we now proceed to consider the ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 25 contradictions taken note of by the learned Special Judge to acquit the respondent.
.
1. Contradiction regarding the departure from the S.I. Unit.
18. According to departure report Ext.PW-7/A, HC Kartar Singh (PW-1), HC Varinder Singh (PW-12), C. Yaqub Mohammad (PW-3) and C. Mohammad Aslam No. 311 (PW-2) proceeded in connection with patrolling and Nakabandi alongwith I.O. Kit and
19.
r to mega search light in private passenger vehicle and personal motorcycle towards Tikarigarh, Nakrod, Chilli and Tissa.
PW-1 in his cross-examination claimed that he had gone to Tissa in private vehicle No. HP 44-0748 belonging to him but the number of the vehicle was not mentioned in the departure report Ext.PW-7/A. Not only this, it has not even mentioned in the report that this was a private vehicle of this witness and, therefore, it was difficult to believe that the police officials had gone on vehicle No. HP-44-0748 or else this factum has been mentioned in the aforesaid report.
20. PW-2 in his cross-examination stated that motorcycle No. 48-7542 was belonging to him but he feigned ignorance that the description of the motorcycle was made in the departure report. PW-1 had categorically stated that he had not claimed any reimbursement of the fuel used in the motorcycle and claimed that 25 litres petrol per month was supplied to S.I. Unit ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 26 by S.P., Chamba and the said petrol was used in the vehicle and motorcycle but surprisingly neither the log book was maintained .
and produced nor he was aware about the mode of supplying of the petrol. No officials from the office of S.P. had been examined to this effect. Investigating Officer (PW-12) claimed that 25-30 litres petrol was given by the S.P. to the I.O.'s to maintain their personal vehicles but feigned ignorance as to when the quota of petrol was given to HC Kartar Singh and whether or not record of issuance of petrol was maintained in S.P. office. In fact, no efforts were made to trace this record.
21. It was also observed by the learned Special Judge that the place of recovery of charas as per the case of the prosecution was about 1 ½ hours journey from police lines which mean that the distance was not less than 50 kms. in one way, therefore, it would be highly improbable that the witnesses would go on the personal vehicle/motorcycle and not even claim reimbursement of the same.
22. That apart, non-examination of the driver was also held to be fatal as he was the best who could have deposed that how the accused was nabbed and in absence of any cogent and satisfactory explanation the departure of the police party from police line and their arrival at the spot itself come under a pale of shadow and, therefore, renders the prosecution case doubtful.
::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 272. Contradiction regarding the place of nakka.
23. PW-1 claimed that the nakka was laid at zero point, .
Tikari bridge and the accused was seen coming from Lasuin road towards Tikari bridge. In cross-examination, this witness stated that the distance of Tikari bridge from Kapadi Galla was about 3 kms. and the place where the accused was spotted was at a distance of 20 kms. from zero point Tikari bridge and the said place was not known by any name. He was totally silent with regard to nakka being laid at Lasuin Chowk. However, PW-2 C. Mohammad Aslam, on the other hand stated in examination-in-
chief that at about 1:10 am they reached at Lasuin Chowk near Tikari bridge where a nakka was laid. He does not state that nakka was laid at Tikari bridge. In cross-examination, this witness stated that the distance of Lasuin Chowk from Tikari bridge was about 30 to 35 meters and feigned ignorance that he had disclosed to the police that nakka had been laid at Lasuin Chowk and claimed that he had gone many times to Tikari bridge and Lasuin Chowk during day time which clearly mean that Tikari bridge and Lasuin Chowk were two different places.
24. PW-3 came up with yet another stand and claimed that 1:15 am they laid nakka near Tikari bridge on Lasuin zero point. He also does not state that the nakka had, in fact, been laid at Tikari bridge or Lusain zero point. In cross-examination, ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 28 he stated that the distance of the Lasuin Chowk and Tikari bridge was about 20-25 meters.
.
25. Now, adverting to the statement of I.O., he claimed that the police party was present near Tikari bridge Lasuin Chowk for nakabandi and, therefore, it follows from his version that the Tikari bridge and Lasuin Chowk according to him was one and the same place. In cross-examination, the witness stated that the nakka had been laid on Lasuin Chowk near Tikari bridge which was at a distance of about 100 meters from Tikari bridge and feigned ignorance that there is a place like Lasuin Chowk near Tikari bridge and also feigned ignorance of the distance of Lasuin Chowk from Tikari bridge.
26. Now, adverting to the spot map Ext.PW-12/B, Tikari bridge has been depicted at point 'D' but the Lasuin Chowk has not been projected and even the distance of Lasuin Chowk and Tikari bridge had not been depicted.
27. As regards the rukka, it has been mentioned therein that the police party was present at zero point near Tikari bridge and not at Tikari bridge or Lasuin Chowk. It was on the basis of these statements that the learned Special Judge came to the conclusion that the witnesses that were examined had not come out with their independent version regarding the place of nakka and none of them were consistent about the place and distance.
This especially assumes significance as it is the specific case of ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 29 the prosecution that the accused had sustained injuries while fleeing away, therefore, the exact place of nakka was required to .
be depicted and once there is glaring infirmities and contradictions in respect of place of nakka, the prosecution has failed to substantiate that where the nakka had, in fact, been laid and whether respondent had appeared at such place.
3. Contradiction regarding time of arrival of respondent
28. PW-1 stated that at about 1:25 am accused had come to Lasuin road towards Tikari bridge. PW-2 C. Mohammad Aslam would put it at 1:30 am and to similar effect is the statement of PW-3 C. Yakub Mohammad. The I.O., on the other hand, claimed that the accused appeared at 1:25 a.m. Learned Special Judge concluded that if all the aforesaid witnesses were at the spot, as alleged, then there was no occasion for any ambiguity. This assumes significance because the police party proceeded from police lines at 6:00 pm on 20.10.2010 and reached on the spot on the night intervening, that too, after halting at various places.
4. Contradiction with respect to nabbing of the respondent.
29. PW-1 stated that respondent had tried to ascend the pagdandi (side walk, trail or track) and jump from the dhank.
PW-2, on the other hand, claimed that the respondent started ::: Downloaded on - 25/05/2018 23:03:37 :::HCHP 30 running on pagdandi. PW-3, on the other hand, stated that the respondent jumped down to a pagdandi leading to Kapadi Galla, .
but this was not so stated by PW-12. Apart from the above, the spot map Ext.PW-12/B does not reflect a pagdandi leading towards Kapadi Galla.
5. Contradiction about the possession and identification of the bag carried by the accused or completion of proceedings at the spot.
30. As per rukka Ext. PW-12/A respondent was carrying a green colour bag . Even though report Ext.PW-7/A shows that the police party was in possession of mega light but the version of PW1 is totally silent about the respondent having been seen with the aid of mega light. This witness has rather stated that it was not a complete moon lit night but there was partial moon (half moon) and completed the proceedings in the light of the vehicle. However, his version is totally silent with regard to the respondent being spotted with the help of the light of the vehicle and rightly so because after all a nakka would not have been laid with the light being switched on. He further stated that the proceedings in this case were completed with the aid and use of the light of the vehicle, which according to the learned Special Judge was a clear indicator that the police party was not in possession of the mega light as projected in Ext.PW-7/A and, therefore, it was not possible to identify the colour of the bag as projected in the rukka.
::: Downloaded on - 25/05/2018 23:03:38 :::HCHP 3131. On the other hand, PW-2 in his cross-examination stated that it was not a moon lit night and further stated that the .
proceedings in the case were completed with the aid of mega light and search light and as also the light of the vehicle. PW-3 in his cross-examination stated that it was a complete moon lit night and the charas was weighed outside the vehicle with the aid of head light of vehicle whereas the rest of the proceedings were completed inside the vehicle with the help of mega light and light of the vehicle.
32. Adverting to the testimony of PW-12, he stated in his cross-examination that the police party was having a mega light and completed the majority of the work with the help of mega light and inner light of the vehicle.
33. The learned Special Judge held that as different versions with regard to the use of light had come on record, it was certainly not possible for the prosecution to have ascertained the colour of the bag at that time and it would otherwise be impossible to identify a particular colour during the moon lit night and, therefore, it was quite possible that the witnesses had deposed falsely and the possibility of their having nabbed the respondent somewhere could not be ruled out.
::: Downloaded on - 25/05/2018 23:03:38 :::HCHP 326. Contradiction regarding weighment of alleged Charas
34. PW-1 stated that the I.O. was having weights and .
scale in the I.O. kit and the charas was weighed with the said weights and scale and found to be 4 kgs. This version was fully supported by PW-2 and the IO PW12 HC Varinder Singh.
However, PW-3 claimed in the cross-examination that the weights and scale were manual and the weights were not of metal but of stones and one of the stones was of two kgs. and another stone was of one kg. Admittedly, no search of the I.O.
kit was given to the accused and no evidence has been brought on record to indicate that PW-12 had been issued the I.O. kit with weights of stones with certification. In fact, no evidence had been led to prove that these weights and scale had been issued by some authority as the stones could not have been issued as weights and certified as weights in the I.O. kit. This in itself as per the conclusion drawn by the learned Special Judge belied the entire case of the prosecution wherein the recovery was not only doubtful but the possibility of false case having been planted on the respondent could not be ruled out.
7. Contradiction regarding association of independent witnesses
35. PW-1 claimed that the place was secluded one and as such no independent witness could be associated. In cross-
examination, this witness denied that a house and Gharat (water ::: Downloaded on - 25/05/2018 23:03:38 :::HCHP 33 mill) of Bhagi Ram and shop-cum-residence of Sukardeen were situated near Tikari bridge or family and servants of Sukardeen .
reside there. PW-2 denied that houses of many people like Om Parkash, Porkhi and Raju were situated at Lasuin Chowk but he admitted that two houses were situated near Tikari bridge and feigned ignorance that the I.O. had summoned any one from the houses to the spot. This according to the learned Special Judge suggested that PW-1 had deposed falsely that there was no house at Tikari bridge. Be it noted that Tikari bridge was not far away from the spot and even if the version of the I.O. is believed then the said distance was 100 meters. Therefore, it was possible for the police officials to associate local inhabitants of the locality and to hear as to what was going on in the area as the stones were alleged to have been pelted.
36. PW-3 claimed that no house and Gharat and shop adjoining to Tikari bridge, however, he feigned ignorance that IO had dispatched someone to ascertain whether or not some person residing in the Gharat or house or in the shop. This witness, however, volunteered to state that HC Kartar Singh had gone to turn back his car and had informed the I.O. that there was no one in the Gharat or shop but the rukka as also the statements of other witnesses are totally silent on this aspect of the case.
::: Downloaded on - 25/05/2018 23:03:38 :::HCHP 3437. The learned Special Judge thereafter observed that in case the version put-forth by the witnesses to be believed .
then it establishes that the head lights of the car were facing towards the respondent as projected and further falsify their claim that the respondent had been seen coming from the opposite side with the green bag.
38. In this background, the testimony of PW-12 is crucial who simply stated that the place was secluded and had further stated that he had deputed C. Kartar Singh or any other witness to find an independent witness. He further stated that the shop and Gharat were situated at Tikari bridge and volunteered to state that the Gharat and shop were remained opened only during the day time. He stated that he had gone up to Tikari bridge and found the shop and Gharat closed and then turned back and laid nakka. But surprisingly the existence of the Gharat and shop have not been shown or reflected in the spot map Ext.PW-12/B and this in itself led the learned Special Judge to conclude that the I.O. had concealed the vital detail from the Court and no efforts, in fact, had been made by him to associate the independent witnesses.
8. Contradiction regarding sealing of case property
39. PW-1 claimed that the charas was weighed and sealed in a parcel and seal after use was handed over to him but ::: Downloaded on - 25/05/2018 23:03:38 :::HCHP 35 he had not produced the seal for the perusal of the Court and claimed that he had lost the seal and he feigned ignorance .
about the time of loss. He further stated that no record of loss of seal was maintained.
40. As per the prosecution case, the case property was re-sealed by the SHO Brij Mohan, who resealed the parcel by affixing five seals of impression 'R' in presence of C. Ravinder Singh and C. Suneel Kumar. As per him, he embossed seal 'R' in NCB forms andr prepared reseal memo Ext.PW-6/C and, thereafter, handed over the seal to C. Ravinder Singh. Further while appearing as PW-6 Ravinder Singh also stated that he had not brought the seal though claimed that the parcel had been resealed in his presence but no satisfactory explanation was put-
forth by him regarding the loss of seal. On the basis of such record, the learned Special Judge held that merely because the case property had been sent to FSL, Junga by him, it had not been substantiated that the property had been sent in safe condition as the link evidence was clearly missing as neither seal 'V' nor seal 'R' had seen the light of the day.
41. The learned Special Judge recorded the contention of the learned Public Prosecutor that the specimen seal had been sent to FSL, Junga and Chemical Analyist had found the seal to be intact in his report Ext. PX. Further, he still proceed to hold that there was doubt with regard to the case property having ::: Downloaded on - 25/05/2018 23:03:38 :::HCHP 36 been re-sealed in a manner as projected by the prosecution, more particularly, when the same was weighed with stones and .
was deposited with PW10 after almost five hours. In the given circumstances, the learned Special Judge held the case of the prosecution with regard to the wieghment and re-sealing of the case property to be highly doubtful, more particularly, in mode and manner as was projected by the prosecution.
9. Contradiction with regard to production of case property for re-sealing
42. The learned Special Judge held that there was contradiction with regard to re-sealing of the case property.
However, we have gone through such findings and find that the same are not borne out from the records. As per the prosecution case, HC Kartar Singh (PW-1), C. Yaqub Mohammad (PW-3) had alighted from the vehicle at Kapadi Galla and had not gone to CHC, Tissa, whereas learned Special Judge has held that HC Kartar Singh (PW-1) had gone to CHC, Tissa, but did not state this fact in his testimony. It was, in fact, PW-2 C. Mohammad Aslam No. 311 who had accompanied PW-12 alongwith the respondent to CHC, Tissa, where from the respondent had stated to have fled away.
43. We also have considered the entire evidence and documents on record and the reasoning given by the learned Special Judge for acquitting the respondent.
::: Downloaded on - 25/05/2018 23:03:38 :::HCHP 3744. In our considered opinion, the learned Special Judge had carefully scrutinised the entire evidence and documents on .
record and only thereafter arrived at the aforesaid conclusion.
45. On marshalling the entire evidence and documents on record, we have no hesitation to conclude that the view taken by the learned Special Judge is certainly a possible and plausible view. The settled legal position as explained above is that if the trial Court view is possible and plausible, the High Court should not substitute the same by its own possible view. The trial Court has taken a great pain in discussing all important and material aspects and record its opinion on every material and relevant point. The trial Court after marshalling the evidence on record has come to the conclusion that there was a serious infirmities in the prosecution story. After following the settled principles, it held that the prosecution had failed to establish the guilt of the accused beyond shadow of all reasonable doubts. The learned Special Judge has categorically came to the findings that when the substratum of the evidence of the prosecution witnesses was false, then the prosecution case had to be discarded. Obviously, when the learned Special Judge found so many serious infirmities in the prosecution version then it was virtually left with no choice but to acquit the respondent.
46. That apart, it was the learned Special Judge, who had the advantage of watching the demeanour of the witnesses ::: Downloaded on - 25/05/2018 23:03:38 :::HCHP 38 who had given evidence. The findings so recorded cannot be said to be perverse or wholly unsustainable.
.
47. In view of the aforesaid discussion, we find no illegality, irregularity or perversity in the judgment passed by the learned Special Judge. Consequently, there is no merit in this appeal and the same is accordingly dismissed.
(Tarlok Singh Chauhan),
Judge
r (Chander Bhusan Barowalia)
Judge
May 25th, 2018
sanjeev
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