Himachal Pradesh High Court
State Of Himachal Pradesh vs Balak Ram on 5 October, 2015
Author: Sanjay Karol
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 118 of 2009
.
Judgment reserved on:22.09.2015
Date of Decision: October 5 , 2015
State of Himachal Pradesh ...Appellant.
Versus
Balak Ram ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
rt
The Hon'ble Mr. Justice P.S. Rana, Judge.
Whether approved for reporting? 1No .
For the Appellant : M/s Ashok Chaudhary, V.S.
Chauhan, Addl. AGs., with J.S.
Guleria, Asstt. AG., for th e
appellant-State.
For the Respondent: Mr. Rakesh Dhaulta, Advocate, for
the respondent.
Sanjay Karol, J.
Assailing the judgment dated 27.09.2008, passed by Special Judge, Fast Track, Kullu , H.P., in Sessions Trial No. 58 of 2006, titled as State Versus Balak Ram, whereby accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 22. It is the case of prosecution that on 23.11.2005, police party comprising of SI Ram Karan (PW.8), Rajender Singh (not examined), Dalip Kumar .
(PW.6) and Om Chand (PW.7) had set up a Naka at Fagu-
Pul. Police party had left Police Station, Banjar in a Government vehicle. At about 9.00 PM, accused, who was coming from the jungle side, seeing the police party of threw a rucksack and fled away. However, after some time he was apprehended. From the bag , charas in the shape of chapattis and sticks weighing 850 grams, was rt recovered. Two samples of 25 grams each were drawn and samples as also bulk parcel were sealed with seal having impression 'T' and taken into possession vide recovery memo (Ex.PN). NCB form (Ex.PO) was filled up.
Rukka (Ex.PP) was carried by Constable Dalip Kumar (PW.6) to Police Station, Banjar, on the basis of which ASI Mathuru Ram (PW.4) registered FIR No.117 of 2005, dated 23.11.2005 (Ex.P E), under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) against the accused. With the file being taken back to the spot, formalities were completed. SI Ram Karan deposited the case property with MHC Chaman Lal (PW.5), who sent the ::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 3 sample for chemical analysis through Mast Ram (PW.2) to CTL, Kandaghat, report (Ex.PT) thereof was obtained by the police. Special report (Ex.PC) was handed over by SI .
Ram Karan (PW.8) to Sonam Choppel, Additional Superintendent of Police. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented of in the Court for trial.
3. The accused was charged for having committed an offence punishable under the provisions of rt Sections 20 of the NDPS Act, to which h e did not plead guilty and claimed trial.
4. In order to establish its case, in all, prosecution examined as many as eight witnesses.
Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took defence of innocence and false implication. No evidence in defence was led.
5. Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.
6. We have heard M/s Ashok Chaudhary, V.S. Chauhan, learned Additional Advocate Generals , assisted ::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 4 by Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State as also Mr. Rakesh Dhaulta, Advocate, on behalf of 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 of 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.
rt 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 the 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 ::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 5 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 of the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be rt 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 reac hing 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 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. In the instant case, no independent witnesses were associated by the police.
::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 610. 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 .
witnesses or 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-
of 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, rt cogent and if required duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in 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.
::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 7There 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 of nor good to the public, it can only bring down the prestige of police administration.
12. rt 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 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.
::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 8[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 of 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, rt 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, 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. Contradictions in the statement of Om Chand (PW.7) and Ram Karan (PW.8) with regard to the place where accused was apprehended , only renders the testimonies of police officials to be shaky and prosecution case to be doubtful. According to Om Chand, police had set up a Naka at a place just 2 or 2 ½ km away from Village Targali and police had checked 5-6 vehicles on the spot. Whereas, according to Ram Karan, Naka was set up at a distance of 100 meters from Fagu-
::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 9Pul, which is at a distance of 1 km from Village Targali and at the time of occurrence, no vehicle was checked.
15. Conjoint reading of testimonies of these .
witnesses only reveals that there was a plum orchard nearby, yet no endeavour was made to associate any independent witness. Why so? Remains unexplained.
Ram Karan (PW.8) admits that no endeavour was made of to associate independent witnesses. He further tries to overcome such lapses by stating that at the time when proceedings were conducted "no independent witness rt came". In the given facts and circumstances, especially when accused had fled away after throwing the rucksack and police strongly suspected contraband substance to be there in the bag, they ought to have made an endeavour of associating independent witnesses. This further renders the prosecution case to be doubtful.
16. The improbabilities and contradictions in the prosecution case do not end here. According to Ram Karan (PW.8), proceedings of consent, search and recovery were drawn on the spot, but it does not appear to be true, for in the NCB form (Ex.PO).
17. Further why there was a delay of seven months for getting the sample analyzed, remains ::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 10 unexplained. This gains significance in view of the fact that there is no evidence to establish how sample of the seal 'T' was sent to the Laboratory. None of the .
witnesses has revealed such fact. Also Malkhana register (Ex.PG) is silent on this aspect. Road certificate (Ex.PD) also does not disclose the same.
18. SI Ram Karan (PW.8) admits that at the time of of preparation of arrest memo (Ex.PR), brother of the accused had reached. This was after information was furnished on telephone. Who disclosed the telephone rt number of the brother of the accused? Which phone was used for making the call? Who made the call? What was the time when call was made? remains unexplained and unestablished on record. This acquires significance in the light of our observations of the papers having been prepared not on the spot. Om Chand (PW.7) admits that statements of the witnesses stood recorded by Ram Karan (PW.8) on the spot, which fact stands belied by Ram Karan, according to whom, statements of the witnesses were not recorded on the spot.
19. We do not find prosecution to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence with regard to recovery of ::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 11 contraband substance from the conscious possession of the accused. Contradictions in the statements of police officials are glaring, material and relevant, totally shaking .
the edifice of prosecution story. Witnesses are unreliable and their testimonies not free from embellishments/ contradictions/variations.
20. The Court below, in our considered view, has of correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous rt or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.
21. The accused person 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 Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, since it cannot be said that trial Court 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, being devoid of merit, is dismissed, so also the pending ::: Downloaded on - 15/04/2017 19:02:24 :::HCHP 12 application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.
.
(Sanjay Karol), Judge.
(P.S. Rana), October 5 , 2015. Judge.
(Purohit) of rt ::: Downloaded on - 15/04/2017 19:02:24 :::HCHP