Himachal Pradesh High Court
State Of Himachal Pradesh vs Ramesh Kumar on 14 October, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.455 of 2009 Reserved on : 6.10.2015 .
Date of Decision : October 14, 2015 State of Himachal Pradesh ...Appellant.
Versus
Ramesh Kumar ...Respondent.
Coram:
of
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 State
rt : Mr. Kush Sharma, Deputy
Advocate General and Mr. J.S.
Guleria, Assistant Advocate
General.
For the Respondent : Mr. Rajeshwar Thakur, Amicus
Curiae, and Mr. Manoj Pathak,
Advocate.
Sanjay Karol, Judge
State has appealed against the judgment dated 26.2.2009, passed by the Special Judge, Fast Track, Kullu, Himachal Pradesh, in Sessions Trial No.9 of 2008, titled as State v. Ramesh Kumar, whereby accused-respondent Ramesh Kumar, hereinafter referred to as the accused, stands acquitted of the offence, punishable under the provisions of Section 20 Whether reporters of the local papers may be allowed to see the judgment?
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of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).
2. It is the case of prosecution that on .
21.11.2005, ASI Shiv Singh (PW-7), alongwith Constable Pratap Chand (PW-5), Constable Pawan Kumar (PW-6) and LC Dropti Devi (not examined), was on patrol duty at village Loran. At about 3.30 p.m., police party of spotted the accused, carrying a polythene envelope in his right hand, coming from Loran side towards Sarwari, rt who on seeing the police party, threw away the polythene envelope and fled away, but however was apprehended by the police party. When questioned about the contents of the envelope, accused informed that the bag contained charas. Constable Pratap Chand was sent in search of independent witnesses, who returned with Shri Megh Singh (PW-1). ASI Shiv Singh, after associating Shri Megh Singh and Constable Pratap Chand, as witnesses, picked up the polythene envelope thrown by the accused and searched the same. The envelope was white in colour with words "Thakur Garments" inscribed on it, which contained another polythene envelope. On checking Charas, weighing 950 ::: Downloaded on - 15/04/2017 19:12:04 :::HCHP ...3...
grams, was recovered. Two samples, each weighing 25 grams, were drawn. Samples and the bulk charas were sealed in separate parcels with three seals having .
impression "H". NCB form (Ex. PT) was filled up in triplicate; search and seizure memo (Ex. PP) prepared on the spot; accused was arrested vide memo (Ex.PR).
Rukka (Ex.PU) was sent through Constable Pawan of Kumar, on the basis of which FIR No.575, dated 21.11.2005 (Ex.PA), for commission of offence, rt punishable under the provisions of Section 20 of the Act, was registered by SI Joginder Singh (PW-2) at Police Station, Kullu, Himachal Pradesh. With the completion of proceedings on the spot, the case property was produced before SI Joginder Singh, who resealed the same with his own seal of impression "T" and thereafter deposited the same with MHC Jia Lal (PW-3), who kept it in the Malkhana. Sealed sample was sent through Constable Pratap Chand to the Central Testing Laboratory, Kandghat for chemical examination. Special Report (Ex. PL) was also sent to the Additional Superintendent of Police, Kullu. Report of the Chemical Examiner (Ex.PE) was taken on record. With the ::: Downloaded on - 15/04/2017 19:12:04 :::HCHP ...4...
completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
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3. Accused was charged for having committed an offence, punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial.
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4. In order to establish its case, prosecution examined as many as seven witnesses and statement of rt the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took defence of innocence and false implication.
5. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State.
6. We have heard Mr. Kush Sharma, learned Deputy Advocate General, and Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State as also Mr. Rajeshwar Thakur, Amicus Curia and Mr. Manoj Pathak, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses ::: Downloaded on - 15/04/2017 19:12:04 :::HCHP ...5...
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 of nor any perversity with the same, resulting into miscarriage of justice.
7. rtIt 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 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 ::: Downloaded on - 15/04/2017 19:12:04 :::HCHP ...6...
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 of 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 rt 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 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, independent witness Shri Megh Singh has not supported the prosecution case. He was declared hostile and extensively cross-examined, but nothing fruitful could be elicited from his testimony.
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Apart from the fact that he is denying any recovery having been effected in his presence, in his unrebutted testimony he has deposed that "Police had told me that .
charas had been recovered from the room of the accused Ramesh Kumar. It is correct to suggest that accused was also subjected to beating and thereafter his signatures were obtained on various documents".
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10. Now, this leaves us with the testimonies of the police officials.
11. rt 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-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 statement of such witness cannot be discarded only on the ground that he is a police ::: Downloaded on - 15/04/2017 19:12:04 :::HCHP ...8...
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.
12. It is not the law that Police witnesses should not be relied upon and their evidence cannot be of accepted unless it is corroborated in material particulars by other independent evidence. The presumption rt 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.
13. 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 ::: Downloaded on - 15/04/2017 19:12:04 :::HCHP ...9...
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, of unless corroborated by some independent evidence.
Such reliable and trustworthy statement can form the rt 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].
14. 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 19:12:04 :::HCHP ...10...
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."
15. In view of the aforesaid statement of law, we shall now examine the testimonies of police officials present on the spot.
16. We find material contradictions in the of testimonies of the police officials. In fact, presence of Constables Pawan Kumar and Pratap Chand on the spot rt appears to be doubtful, rendering the version of ASI Shiv Singh, who conducted the search and seizure operations, to be doubtful.
17. Constable Pratap Chand states that the place where the search and seizure operations were carried out, there is no Bhekhli Mata Temple, which version stands belied and contradicted from the spot map (Ex.PV).
18. Search memo (Ex. PP) records the name of Constable Pawan Kumar. His presence on the spot appears to be doubtful.
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19. There are also major contradictions, inconsistencies and infirmities, in the testimonies of the police officials, which when viewed collectively render .
the prosecution case to be highly doubtful. ASI Shiv Singh states that the accused was apprehended at a place, which was at a distance of 300 or 400 metres from Shitla Mata Temple, whereas according to of Constable Pawan Kumar, it was 100-150 metres.
Further, according to ASI Shiv Singh, accused was rt spotted at a distance of 3-4 metres, whereas according to Constable Pawan Kumar it was 5-6 metres. ASI Shiv Singh wants the Court to believe that on seeing the police party, accused threw the polythene envelope, which he was carrying, from which Charas was recovered. According to him, the Charas was wrapped in another polythene packet, which was kept in the polythene envelope thrown by the accused. Thus, there were two polythene envelopes, which version stands contradicted by Constable Pratap Chand, according to whom, there was only one polythene envelope, which was thrown by the accused and which the police recovered.
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20. Even by way of corroborative evidence, when we peruse the testimony of SI Joginder Singh, MHC Jia Lal and Constable Pratap Chand, we find there are .
material contradictions. Pratap Chand states that the sample handed over to him by MHC Jia Lal, on 29.11.2005, was deposited the following morning at 10 a.m., i.e. 30.11.2005. However, this version stands of contradicted by the NCB form (Ex.PJ), which reveals the sample to have been received in the Laboratory on rt 2.12.2005. No doubt, date of dispatch of the sample is mentioned to be 29.11.2005, but then where did it lie in between, remains unexplained by the prosecution. It is not the case of prosecution that the date recorded by the Forensic Science Laboratory is incorrect. Further, neither the Road Certificate nor the receipt reveals that the sample seals (Seals "H" and "T") were sent to the Laboratory, rendering the prosecution case to be doubtful.
21. Hence, from the material placed on record, prosecution has failed to establish that the accused is guilty of having committed the offence, he has been charged with. The circumstances cannot be said to ::: Downloaded on - 15/04/2017 19:12:04 :::HCHP ...13...
have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable .
doubt to the hilt. The chain of events does not stand conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered do not fully establish of completion of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same.
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22. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused was found in conscious and exclusive possession of Charas.
23. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.
24. 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 ::: Downloaded on - 15/04/2017 19:12:04 :::HCHP ...14...
Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, 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 ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, of furnished by the accused are discharged.
Appeal stands disposed of, so also pending rt application(s), if any.
( Sanjay Karol ), Judge.
( P.S. Rana ),
October 14, 2015(sd) Judge.
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