Himachal Pradesh High Court
State Of Himachal Pradesh vs Respondent on 14 May, 2015
Author: Sanjay Karol
Bench: Sanjay Karol, P. S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 4180 of 2013
Judgment Reserved on : 4.5.2015
Date of Decision : May 14 , 2015
State of Himachal Pradesh ...Appellant
Devi Singh
r to
Versus
...Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting? No. 1
For the appellant : Mr. Ashok Chaudhary, Addl. Advocate General
with Mr. V. S. Chauhan, Addl. A.G. and Mr. J. S.
Guleria, Asstt. A.G. for the appellant-State.
For the respondent : Mr. Naveen K. Bhardwaj, Advocate for the
respondent-accused.
Sanjay Karol, J.
Assailing the judgment dated 12.3.2013, passed by the learned Special Judge, Presiding Officer (FTC), Mandi, H.P., in Sessions Trial No. 41/2010, titled as State of Himachal Pradesh vs. Devi Singh, whereby respondent-
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 2accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal .
Procedure, 1973.
2. It is the case of prosecution that on 21.12.2009, ASI Ram Lal (PW-7) along with ASI Mohan Lal (PW-9), Constable Dhameshwar Singh (PW-6), HHC Dharam Pal and Constable Kashmir Singh (both not examined) was on patrol duty at a place known as Khoti Naala. At about 5.30 p.m., they saw the accused carrying a bag on his shoulder.
Seeing the police party, he became perplexed and tried to flee away. However, on suspicion he was apprehended and searched. From the bag so carried by the accused, contraband substance in the form of charas and opium was recovered, which upon weighment was found to be one kilogram, each. The contraband substance was sealed with seal impression-R. Contraband substance so recovered was taken into possession vide memo (Ext. PW-7/C). NCB form (Ext. PW-7/A), in triplicate, was filled up on the spot. Ruka (Ext. PW-7/D) was prepared and sent through Const.
Dhameshwar Singh, on the basis of which Inspector Hari Pal Saini (PW-10), registered F.I.R. No. 319 of 2009, dated 21.12.2009 (Ext. PW-10/B), against the accused under the provisions of Sections 18 & 20 of the Narcotic Drugs and ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 3 Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Dhameshwar Singh brought the file back to the .
spot and handed it over to the Investigating Officer ASI Ram Lal. Accused was arrested on the spot. The contraband substance was handed over to Inspector Hari Pal Saini (PW-
10) who resealed the same with seal impression-S and deposited the same in the maalkhana. MHC Anil Kumar (PW-
1) handed over the contraband substance to Constable Khem Singh (PW-2) to be deposited at F.S.L. Junga. Report (Ext. PX) of the expert was obtained by the police.
Investigation revealed, complicity of the accused in the alleged crime, hence challan was presented in the Court for trial.
3. Accused was charged for having committed offences punishable under the provisions of Sections 18 & 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which he did not plead guilty and claimed trial.
4. In order to prove its case, in all, prosecution examined ten witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused.
::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 45. Court below acquitted the accused for the reason that prosecution could not prove its case, beyond .
reasonable doubt. Hence the present appeal.
6. We have heard Mr. Ashok Chaudhary, learned Addl. Advocate General ably assisted by Mr. V. S. Chauhan, learned Asstt. A.G. and Mr. J. S. Guleria, Asstt. A.G., on behalf of the State as also Mr. Naveen K. Bhardwaj, learned counsel for the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution.
Having considered the material on record, we are of the considered view that prosecution has failed to establish ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 5 essential ingredients so required to constitute the charged offence.
.
8. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code 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. No limitation should be placed upon that power, unless it be found expressly stated in the Code. 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 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 ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 6 Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of .
the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "
9. Undisputedly, prosecution has not examined any independent witness. Recovery was also not effected from the conscious possession of the accused in the presence of any independent witness. In order to establish its case, beyond reasonable doubt, prosecution has referred to and relied upon the testimonies of police officials namely Constable Dhameshwar Singh (PW-6), ASI Mohan Lal (PW-9) and Investigating Officer ASI Ram Lal (PW-7).
10. It is a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and if required duly corroborated by other witnesses or admissible evidences, then the ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 7 statement of such witness cannot be discarded only on the ground that he is a police officer and may have some .
interest in the success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people, in that event, no credibility can be attached to the statement of such witness.
11. It is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration.
12. Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 8 absence of some independent witness of the locality does not in any way affect the creditworthiness of the .
prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. [See:
Govindaraju alias Govinda v. State by Srirampuram Police Station and another, (2012) 4 SCC 722; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad v. State of M.P., (2007) 7 SCC 625); and Aher Raja Khima v. State of Saurashtra, AIR 1956].
13. Apex Court in Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, held as under:-
"6. ... .In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 9 inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent .
witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
14. It is well established principle of law that (i) 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 more probable; (ii) while dealing with a judgment of acquittal, the appellate court must consider entire evidence on record, so as to arrive at a finding as to whether views of the trial court are perverse or otherwise unsustainable; (iii) the appellate court is entitled to consider whether in arriving at a finding of fact, trial Court failed to take into consideration any admissible fact; and (iv) the trial Court failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. (See: Balak Ram & Anr. v. State of U.P., AIR 1974 SC 2165; Allarakha K Mansuri v. State of Gujarat, (2002) 3 SCC 57; Raghunath v. State of Haryana, (2003) 1 SCC 398; State of U.P. v. Ram Veer Singh & Ors., (2007) 13 SCC 102; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors., AIR 2008 SC 2066; Sambhaji Hindurao Deshmukh & Ors. v.
::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 10State of Maharashtra, (2008) 11 SCC 186; Arulvelu & Anr. v.
State, (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors.
.
v. State of A.P., (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh, (2010) 2 SCC 445).
15. In Sheo Swaroop and Ors. v. King Emperor, AIR 1934 PC 227, the Privy Council held that:
"...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...."
16. In Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415, the apex Court observed as under:
"(1) An appellate court has full power to review, re-appreciate 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 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 ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 11 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."
17. In State of Uttar Pradesh v. Banne @ Baijnath & Ors., (2009) 4 SCC 271, the apex Court gave illustrations of certain circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court, which principle, in our considered view, would squarely apply to the judgment under review by us. The circumstances include; (i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 12 to evidence and documents on record; iii) The entire approach of the High Court in dealing with the evidence was .
patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) Apex Court must always give proper weight and consideration to the findings of the High Court;
and (vi) the apex Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. The apex Court further held that "Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence.
Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference." (Emphasis supplied) ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 13
18. In view of the aforesaid statement of law, we shall now examine the testimony of police officials.
.
19. We do not find any reason to interfere with the conclusion so rendered by the trial Court. To us the genesis of prosecution story of the police party having left the police station for naakabandi and being present on the spot appears to be doubtful. Conjoint reading of the testimonies of Dhameshwar Singh, Ram Lal and Mohan Lal exhibit contradictions, which are glaring on material fact of search and seizure operations. In fact, presence of police party on the spot itself is very much in doubt.
20. Ram Lal states that the police party left the concerned police station on patrol duty in a bus which version stands unambiguously and uncontrovertedly belied by Mohan Lal who states that they left in a private vehicle.
The witness is categorical as he names the car to be Alto.
Version of Ram Lal cannot be said to be inspiring in confidence for he does not remember whether the bus belonged to the State Road Transport Corporation or was a private one. He does not even remember the number of the vehicle. He could not state when the bus was taken from the bus stand. Nor does he remember the route of the bus.
After all, Ram Lal was the leader of the party and ought to ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 14 have recorded such facts. Thus the very genesis of the prosecution story is rendered to be doubtful.
.
21. Noticeably in the present case no independent witness was associated during the search and seizure operations. Even on this fact, there is material contradiction. Whereas Mohan Lal states that on the asking of Ram Lal he went to call for the independent witnesses but none agreed to come. He is categorical that despite the same, no action was taken by him. Why so? he does not explain. That apart, his version stands materially belied by Ram Lal according to whom none was sent to call for independent witnesses. Testimony of Ram Lal further reveals his explanation for non association of independent witnesses. According to him, the place was secluded and that "no independent witnesses could be associated". But then, in the very next breath, he contradicts himself by deposing that "the occupants of the vehicle coming and going were requested to witness the search, but they refused to become witnesses". Now why is it that this witness did not take any action against the occupants of such vehicles, remains unexplained. After all police party comprised of six police officials. There were how many vehicles? Of what make? What were their registration no.?
::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 15In this backdrop contradictions are galore and multiple. The place where the alleged contraband substance was .
recovered is on the National Highway No. 21. Now if no independent person was willing to be associated in the search and seizure operations, then why is it that the police party did not take the accused and the contraband substance to the police station or to the nearby locality where respectable persons could have been associated as witnesses? After all accused was apprehended on suspicion.
22. There is yet another glaring error in the prosecution case. From the report of the State Forensic Science Laboratory, Junga (Ext. PX), it is evident that the reference no. is dated 22.12.2009. No doubt document records the date of receipt of the parcel to be 23.12.2009, but then prosecution has not explained this date of 22.12.2009. Accused was apprehended and the contraband seized on 21.12.2009. Very same day, it was deposited in the maalkhana and not taken out till it was sent to the laboratory. MHC Anil Kumar has categorically deposed that the sample along with the documents was forwarded to the State Forensic Science Laboratory, Junga only on 23.12.2009, which version is also corroborated by Constable Khem Singh (PW-2), who took it on the same date. Now if ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 16 the contraband substance was handed over for being deposited at the laboratory only on 23.12.2009, where is .
the question of reference dated 22.12.2009. Position remains unclarified even from the road certificate (Ext. PW-1/B) and maalkhana register (Ext. PW-1/A).
23. For all the aforesaid reasons, we do not find prosecution to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence with regard to the recovery of contraband substance from the conscious possession of the accused.
Contradictions in the statements of the police officials are glaring, material and relevant totally shaking the edifice of the prosecution story. Prosecution witnesses cannot be said to be inspiring in confidence or worthy of credence.
24. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.
25. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP 17 Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, since it .
cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.
For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.
(Sanjay Karol), Judge.
(P. S. Rana), Judge.
May 14 , 2015 (PK) ::: Downloaded on - 15/04/2017 18:10:36 :::HCHP