Himachal Pradesh High Court
State Of Himachal Pradesh vs Tek Chand on 5 January, 2016
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeals No.508 of 2009 Reserved on : 21.12.2015 .
Date of Decision : January 5, 2016 State of Himachal Pradesh ...Appellant.
Versus
Tek Chand ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice P.S. Rana, Judge.
rt Whether approved for reporting? Yes. 1 For the State : Mr. Kush Sharma, Deputy Advocate General, and Mr. J.S. Guleria, Assistant Advocate General.
For the Respondent : M/s Ramesh Shamra and Rahul Verma, Advocates.
Sanjay Karol, Judge State has appealed against the judgment dated 21.8.2009, passed by learned Additional Sessions Judge, Fast Track Court, Chamba, Himachal Pradesh, in Sessions Trial No.11/2009, titled as State of Himachal Pradesh v. Tek Chand, challenging the acquittal of respondent Tek Chand (hereinafter referred to as the accused), for having committed an offence, Whether reporters of the local papers may be allowed to see the judgment?
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punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 .
(hereinafter referred to as the Act).
2. It is the case of prosecution that on 23.12.2008, police party comprising HC Dev Raj (PW-
3), HC Anirudh, headed by Inspector R.P. Jawal (PW-11), of was present at Majra Mor on a traffic checking duty. At about 9.30 p.m., they noticed accused, carrying a bag, coming from Kiyani side. On suspicion that he may be rt carrying some contraband substance, he was apprehended and informed of his right of being searched before a Magistrate or a Gazetted Officer.
However, vide Memo (Ex.PW-4/A), accused consented to be searched by the Police Party present on the spot.
From the bag, 4.400 kgs of Charas was recovered. Two samples, each weighing 25 grams, were drawn. The samples and the bulk contraband substance were made into separate parcels and sealed separately with three seals of seal impression 'S' and taken into possession vide Memo (Ex.PW-4/C). Ruka (Ex.PW-11/A) was sent, through HC Dev Raj, to Police Station, Sadar (Chamba), on the basis of which FIR No.264, dated ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...3...
24.12.2008 (Ex.PW-8/A) was registered by SI Diwan Chand (PW-8), for having committed an offence .
punishable under the provisions of Section 20 of the Act. NCB form (Ex.PW-4/E) was filled up in triplicate.
Accused was arrested on the spot. Case property was entrusted to MHC Kailash Chand (PW-9), who sent a of sealed sample, through Constable Prabhat Singh (PW-
5), to the Forensic Science Laboratory for analysis and report (Ex. PX) taken on record. During investigation, rt statements of independent witnesses, Kewal Krishan (PW-1) and Bhagmal (PW-2), in whose presence, search and seizure operations were carried out, were also recorded. 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.
4. In order to establish its case, prosecution examined as many as 11 witnesses and statement of ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...4...
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.
5. Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present of appeal by the State.
6. We have heard Mr. Kush Sharma, learned Deputy Advocate General and Mr. J.S. Guleria, learned rt Assistant Advocate General, on behalf of the State as also M/s Ramesh Sharma and Rahul Verma, Advocates, 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 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.
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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 essential ingredients so required of to constitute the charged offence.
8. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as rt 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 ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...6...
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 of 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 rt in accordance with rules and principles well known and recognized in the administration of justice." "
9. Record reveals that from the Memo (Ex.PW-
8/A), in compliance with the provisions of Section 50 of the Act, and the recovery memo (Ex.PW-4/C), it is apparent that police has associated two independent witnesses Kewal Krishan and Bhagmal. Both these witnesses, in Court, have not supported the prosecution case at all. They were declared hostile and extensively cross-examined, but nothing fruitful could be elicited from their testimonies.
10. Bhagmal is involved in several cases. This he admits in his unrebutted testimony. He admits to have been summoned by the police regularly. Now, ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...7...
why would the police associate an accused as a witness? is not clear. After all, it not the case of .
prosecution that identity of the witness was not known to the police from before. The witness categorically states that police obtained his signatures on the documents, without letting him know the purpose of thereof.
11. It is a settled proposition of law that merely because a witness has turned hostile, his entire rt evidence cannot be termed to be unworthy of credence. It is for the Court to consider, whether as a result of contradiction, witness stands fully discredited or part of his testimony can still be believed. If the credit of a witness is not fully shaken, Court can rely upon that part of the testimony which appears to be creditworthy.
12. Their Lordships of the Hon'ble Supreme Court in Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123 have held that seizure witnesses turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...8...
criminal trials, particularly in cases relating to NDPS Act.
.
13. Their Lordships of the Hon'ble Supreme Court in Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, (2011) 6 SCC 312 have held that evidence of hostile witness may contain elements of truth and of should not be entirely discarded. Their Lordships have held as under:
"22. The learned counsel for the appellant rt further submitted the doctor had not given his written opinion that the deceased was fit enough to give her statement. Though orally, the doctor said so. Relying on this part of the evidence especially the evidence of the husband of the deceased, the learned counsel for the appellant submitted that even though the husband may have been declared hostile, the law relating to appreciation of evidence of hostile witnesses is not to completely discard the evidence given by them. This Court has held that even the evidence given by hostile witness may contain elements of truth.
23. This Court has held in State of U.P. vs. Chetram and others, AIR 1989 SC 1543, that merely because the witnesses have been declared hostile the entire evidence should not be brushed aside. [See para 13 at page 1548].
Similar view has been expressed by three-judge Bench of this Court in Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, [AIR 1991 SC 1853]. At para 6, page 1857 of the report this Court speaking through Justice Ahmadi, as His Lordship then was, after referring to various judgments of this Court laid down that just because the witness turned hostile his entire evidence should not be washed out."::: Downloaded on - 15/04/2017 19:39:39 :::HCHP
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14. Their Lordships of the Hon'ble Supreme Court in Bhajju alias Karan Singh vs. State of Madhya .
Pradesh, (2012) 4 SCC 327 have held that evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. Their Lordships of have held as under:
"36. It is settled law that the evidence of hostile witnesses can also be relied upon by the rtprosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.
37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases:
(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624 ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...10...
(b) Prithi v. State of Haryana (2010) 8 SCC 536
(c) Sidhartha Vashisht @ Manu Sharma v. State .
(NCT of Delhi) (2010) 6 SCC 1
(d) Ramkrushna v. State of Maharashtra (2007) 13 SCC 525"
15. Their Lordships of the Hon'ble Supreme Court in Ramesh Harijan vs. State of Uttar Pradesh, of (2012) 5 SCC 777 have again reiterated that any portion of evidence consistent with case of prosecution rt or defence can be relied upon. Their Lordships have further held that seizure/recovery witnesses though turning hostile, but admitting their signatures/thumb impressions on recovery memo, they could be relied on by prosecution. Their Lordships have held as under:
"23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853).
a. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held that ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...11...
evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of .
the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951; Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; and of Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, rtand relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36)"
16. 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 ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...12...
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 of event, no credibility can be attached to the statement of such witness.
17. rt 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 ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...13...
public, it can only bring down the prestige of police administration.
.
18. 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 of 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 rt 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].
19. Apex Court in Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, held as under:-
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"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 of 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 rt way affect the creditworthiness of the prosecution case."
20. In view of the aforesaid statement of law, we shall now examine the testimonies of police officials present on the spot.
21. According to Inspector R.P. Jaswal, Kewal Krishan was associated as a witness, as he was driving the vehicle and was present on the spot at the time when the search and seizure operations were carried out, but then, this witness denies such fact. He does not own any vehicle nor is he a driver. Police did not take his driving licence or documents on record. Why is it that police did not associate any respectable person from the locality? remains unexplained on record.
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22. It has come in the testimony of HC Anirudh that in close vicinity there is a Poultry Farm, where .
someone is always available. Why is it that police did not associate any local person? remains unexplained on record. It is not the case of prosecution that Kewal Krishan and Bhagmal were local residents.
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23. Thus, a version other than the one, which the prosecution wants the Court to believe, has emerged.rt
24. Version of the prosecution of having set up a Naka at the place of crime does not appear to be inspiring in confidence. According to police officials, Inspector R.P. Jaswal, HC Dev Raj and HC Anirudh, several vehicles were checked, but none was challaned. Also, they do not remember the type of the vehicles checked, and there is contradiction with regard to the number of vehicles checked. The police party wants the Court to believe that the search and seizure operations were carried out with the help of search-light, but then where is it? remains unexplained.
25. Further, according to Inspector R.P. Jaswal, NCB form, in triplicate, was filled up, which was handed ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...16...
over to the MHC. Record reveals that neither in the Malkhana register (Ex.PW-9/A) nor in the Road .
Certificate (Ex.PW-9/B), there is reference of any NCB form. Constable Prabhat Chand (PW-5), who took the contraband substance to the FSL, does not categorically depose to such effect. According to HC of Kailash Chand, both the samples were sent to the FSL for analysis, whereas according to Constable Prabhat Chand only one sample was taken.
rt
26. We further find that the seal has not been produced in Court. It is not mentioned in the report of the Laboratory that impression of the seal was also deposited alongwith the sample.
27. Contradictions and discrepancies acquire significance, when we notice that in the Road Certificate (Ex.PW9/B), number of the FIR is mentioned as 264/08, dated 23.12.2008, but then the FIR No.264 was registered on 24.12.2008 and the discrepancy in the date has not been explained by the prosecution.
28. Non-mentioning of NCB form in the documents on record acquires significance, in view of the unrebutted testimony of HC Dev Raj that after the ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...17...
registration of the FIR the file was handed over to the Investigating Officer (SHO) in the Police Station at 3.40 .
a.m. on 24.12.2008. But when we peruse the version of Inspector R.P. Jaswal, it is apparent that the documents, including the NCB form, were filled up on the spot. It is not the case of this witness that any of of the forms were filled up in the Police Station. Then how is it that the number of the FIR stands recorded in Column No.1 of the NCB form.
rt Also, even as per version of MHC Kailash Chand there is no entry of NCB form in any of the documents. All this renders the prosecution case to be doubtful. The documents appear to have been prepared not on the spot, but at the Police Station.
29. In fact, we do not find version of the police officials of having carried the scales with themselves.
There is no record to the effect that the Investigating Officer had taken the kit alongwith him or that scales and weights formed part of the same. Also, there is nothing on record to establish as to how HC Dev Raj went to the Police Station, carrying the Ruka.
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30. We find that there is contradiction in the statements of SI Diwan Chand and HC Dev Raj, with .
regard to the time when the ruka was received and the case file handed over to the SHO.
31. According to Inspector R.P. Jaswal, prior to the accused being searched, accused had searched the of police party, but then there is no memo on record to this effect. The police could prepare a memo, under the provisions of Section 30 of the Act. Why is it that rt the same was not prepared? Explanation is not forthcoming. All this renders the prosecution case to be doubtful. Version of the police party of having set up Naka also has not been corroborated by site plan (Ex.PW-11/B).
32. 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 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 ::: Downloaded on - 15/04/2017 19:39:39 :::HCHP ...19...
conclusively established, leading only to one conclusion, i.e. guilt of the accused. Circumstances .
when cumulatively considered do not fully establish completion of chain of events, indicating to the guilt of the accused and no other hypothesis other than the same.
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33. 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 rt to prove that the accused was found in conscious and exclusive possession of Charas.
34. 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 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, furnished by the accused are discharged.
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Appeal stands disposed of, so also pending application(s), if any.
.
( Sanjay Karol ), Judge.
( P.S. Rana ),
January 5, 2016(sd) Judge.
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rt
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