Himachal Pradesh High Court
Kewal Ram vs State Of Himachal Pradesh on 27 July, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.4160 of 2013 .
Reserved on : 13.7.2015
Date of Decision : July 27, 2015
Kewal Ram ...Appellant.
Versus
State of Himachal Pradesh ...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? Yes. 1 For the Appellant : Mr. Manoj Pathak, Advocate.
For the Respondent : Mr. V.S. Chauhan, Additional Advocate General and Mr. J.S. Guleria, Assistant Advocate General.
Sanjay Karol, Judge Appellants-convict Kewal Ram, hereinafter referred to as the accused, has assailed the judgment dated 20.9.2013/30.9.2013, passed by Special Judge, Solan, District Solan, Himachal Pradesh, in Sessions Trial No.8-S/7 of 2012, titled as State of Himachal Pradesh v. Kewal Ram, whereby he stands convicted of Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:38:19 :::HCHP...2...
the offence punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances .
Act, 1985 (hereinafter referred to as the Act).
2. It is the case of prosecution that on 14.10.2011, police party, comprising of Constable Ram Krishan (PW-8), HHC Hem Raj (PW-9), HC Om Parkash, of HC Ambi Lal, Constable Ajay Kumar, and headed by HC Ram Pal (PW-11), was on a patrol duty at a place known as Shamti.
rt A private bus, bearing No.HP-64- 4497, which was coming from Pulwahal side, was stopped for checking. Police party boarded the bus and found accused Kewal Ram sitting on Seat No.19, who was holding a bag on his legs. On Seat No.18, Jai Singh (PW-1) was sitting. In the presence of Jai Singh and conductor Anil Sharma (PW-2), bag carried by the accused was searched, from which Charas was recovered, which on weighment was found to be of 1.100 kg. Contraband substance was sealed with five seals of seal impression 'A' and taken into possession vide Memo (Ex.PW-1/A). NCB form (Ex.PW-7/F) was filled up in triplicate, on the spot. Ruka (Ex.PW-11/A) was sent through Constable Ram Krishan (PW-8), on ::: Downloaded on - 15/04/2017 18:38:19 :::HCHP ...3...
the basis of which FIR No.246, dated 14.10.2011 (Ex.PW-7/A), under the provisions of Section 20 of the .
Act, was registered at Police Station, Sadar (Solan), District Solan, Himachal Pradesh. Accused was arrested. Case property was entrusted to HC Sohan Lal (PW-7), who, after making entry in the Malkhana of Register (Ex.PW-7/C), kept the same in safe custody, and sent it, through Prem Chand (PW-4), for chemical analysis at the Forensic Science Laboratory, Junga.
rt Report of the Expert (Ex.PX) was taken on record. Also, Special Report (Ex.PW-5/A), so sent by the Investigating Officer, was received in the office of the Deputy Superintendent of Police by Constable Davinder Kumar (PW-5). With the completion of investigation, which, prima facie, revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
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.
::: Downloaded on - 15/04/2017 18:38:19 :::HCHP...4...
4. In order to establish its case, prosecution examined as many as 12 witnesses and statement of .
the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication. He also examined one witness in his defence.
of
5. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused of the charged offence and sentenced him as rt aforesaid. Hence, the present appeal by the accused.
6. We have heard learned counsel for the parties as also perused the record.
7. In the instant case, we find the independent witnesses Jai Singh (PW-1) and Anil Sharma (PW-2) not to have supported the prosecution and despite their extensive cross-examination, nothing fruitful could be elicited from their testimonies. On the contrary, from their unrebutted testimonies, a different version, with regard to the manner in which the search and seizure operations were carried out, has emerged. Both these witnesses have categorically deposed that no recovery was effected from the accused in their presence. They ::: Downloaded on - 15/04/2017 18:38:19 :::HCHP ...5...
have deposed that after the bus was searched by the police officials, five persons were detained and taken to .
the Police Station. In fact, Jai Singh himself was a suspect. The bag was kept on the rack of the bus and not claimed by any person. The witnesses have deposed that police had obtained their signatures on of blank papers. Conductor Anil Sharma has further gone to state that no proceedings were conducted in his presence, as he was made to wait outside the bus.
rt
8. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603, has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to an accused.
9. In Criminal Appeal No.682 of 2015 (SLP (Crl.) No.458 of 2013), titled as Makhan Singh v. State of Haryana, decided on 21.4.2015, the apex Court has held that testimony of independent witnesses cannot be ignored, particularly when it casts doubt on the recovery and the genuineness of the prosecution version.
::: Downloaded on - 15/04/2017 18:38:20 :::HCHP...6...
10. In almost identical circumstances, the apex Court in Jagdish v. State of M.P., (2003) 9 SCC 159, .
adopted the same approach.
11. It is a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by of 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 rt 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 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.
::: Downloaded on - 15/04/2017 18:38:20 :::HCHP...7...
12. 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 of 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 rt 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 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 ::: Downloaded on - 15/04/2017 18:38:20 :::HCHP ...8...
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.
of [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 rtPrasad 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, 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."::: Downloaded on - 15/04/2017 18:38:20 :::HCHP
...9...
15. In view of the aforesaid statement of law, we shall now examine the testimonies of police officials .
present on the spot.
16. When we peruse testimonies of police officials Ram Krishan (PW-8), Hem Raj (PW-9) and Ram Pal (PW-11), the only ones to have been examined, we of do not find their version to be clear, consistent and cogent, with regard to recovery of the contraband rt substance from the conscious possession of the accused. We do not find their testimonies to be inspiring in confidence. In fact, there are contradictions, which have rendered their version to be doubtful/unbelievable and the witnesses not worthy of credence.
17. According to Ram Pal, accused, who was sitting on Seat No.19, was carrying a bag on his legs.
In the presence of Jai Singh, Anil Sharma and Hem Raj, the bag was searched. From the bag, a grey coloured envelope, containing a sweet box tied with a nylon plastic string, was recovered. The sweet box was containing Charas. The witness states that the ::: Downloaded on - 15/04/2017 18:38:20 :::HCHP ...10...
contraband substance was kept back in the sweet box as also the envelope, which was sealed with seal .
impression 'A'. Thereafter, it was taken into possession. Now, when we peruse report (Ex. PX), we find there is no reference of any grey coloured bag.
Also, neither the box nor the grey coloured bag has of been produced in Court.
18. That apart, version of Ram Pal that search was carried out in the presence of Hem Raj stands rt belied, in fact contradicted, by the said witness, who states that "it is correct that I personally did not go to the seats No.17 to 20 (Self stated the same was visible where I was standing in the bus). I was standing inside the door of the bus. I cannot tell whether any passenger was occupying seat No.17. (Self stated perhaps seat No.17 was vacant)". He could not state as to which and how many seats were checked by which of the police officials.
19. It is the admitted case of the police officials that except for Ram Pal, all the police officials, who entered the bus, were standing near the front door.
Now, if that were so, then how is it that recovery was ::: Downloaded on - 15/04/2017 18:38:20 :::HCHP ...11...
effected in the presence of either Ram Krishan or Hem Raj, as undisputedly in the bus, there were 30-35 .
passengers. In fact, Ram Krishan admits that personal search of the accused was not conducted in his presence.
20. According to Ram Pal it took only 15-20 of minutes in checking all the passengers of the bus, whereas according to Hem Raj, it took about "one hour". rt
21. We are of the considered view that Hem Raj was not present, where the accused was sitting, which fact stands established through the unrebutted testimony of Ram Pal, who states that "when I searched the passengers of the bus the other police officials remained near the front window of the bus".
22. The contradiction does not end here.
According to Ram Pal, he never suspected involvement of either Jai Singh or Tapender in the crime, whereas according to Hemj Raj "Jai Singh was detained by the police".
23. Contradiction qua the detention/ involvement of Jai Singh in the crime apart, if the ::: Downloaded on - 15/04/2017 18:38:20 :::HCHP ...12...
contraband substance was actually recovered from the conscious possession of the accused, why is it that five .
other persons were detained by the police. Who were they? It remains a mystery. All this has rendered the genesis of the prosecution case to be doubtful.
24. We find there is contradiction with regard to of the proceedings being videographed and photographed. According to Ram Krishan, it was so done, which fact stands denied by Hem Raj and Ram rt Pal is absolutely silent on this aspect. Now if the proceedings were videographed or photographs were taken on the spot, they why was such evidence concealed from the Court. It would have only revealed the exact events which took place on the spot.
25. In fact, version of Ram Krishan that the police was on patrol duty, stands belied by Ram Pal, according to whom, from the SIU Police Station, the police officials straightway went to the spot and checked the bus in question. Thus, the genesis of the prosecution story thus is rendered doubtful.
26. As per Constable Ram Krishan, NCB forms (Ex.PW-7/F) were filled in, after preparation of seizure ::: Downloaded on - 15/04/2017 18:38:20 :::HCHP ...13...
Memo (Ex.PW-1/A), which version is contradicted by the seizure memo itself, wherein it stands recorded .
that no NCB form was prepared after the seizure of the case property.
27. On the question of NCB form, we find Constable Ram Krishan to have deposed that columns of No.1 to 8 of the NCB form were filled up on the spot, which was prior to sending of the Ruka. Now, if this were true, then obviously police has not prepared the rt documents in accordance with law. This we say so for the reason that Column No.1 pertains to the number of FIR, of which police would have no information prior to sending of the Ruka, which only shows that the documents were prepared lateron. It is pertinent to mention that the Investigating Officer does not disclose who filled up Column No.1 of the NCB form.
28. Further, in Court, tickets of the Bus (Ex. PW-
2/A-1 to A-3) have been produced, but then there is no entry of movement of the same from the Malkhana.
29. Even on the question of sealing of the case property, we have doubt, for the original specimen seal has not been produced on record.
::: Downloaded on - 15/04/2017 18:38:20 :::HCHP...14...
30. There is contradiction with regard to the seat which Jai Singh was occupying. Police officials .
state that Jai Singh was occupying Seat No.18, which fact stands denied by Ram Pal.
31. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, of cogent, convincing and reliable piece of evidence so as to prove that accused Kewal Ram was found in conscious and exclusive possession of Charas.
rt
32. Trial Court has not correctly appreciated the testimonies of the prosecution witnesses. Reliance, selective in nature, on the testimony of the police officials, has resulted into incorrect appreciation of their testimonies.
33. Thus, findings of conviction and sentence, returned by the Court below, cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused.
34. Hence, for all the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, dated 20.9.2013/30.9.2013, passed by ::: Downloaded on - 15/04/2017 18:38:20 :::HCHP ...15...
Special Judge, Solan, District Solan, Himachal Pradesh, in Sessions Trial No.8-S/7 of 2012, titled as State of .
Himachal Pradesh v. Kewal Ram is set aside and the accused is acquitted of the charged offence. He be released from jail, if not required in any other case.
Amount of fine, if deposited by the accused, be of refunded to him accordingly. Release warrants be immediately prepared.
rt Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( P.S. Rana ),
July 27, 2015(sd) Judge.
::: Downloaded on - 15/04/2017 18:38:20 :::HCHP