Om Prakash vs State of Himachal Pradesh

Tarlok Singh Chauhan, J.—This appeal is directed against the judgment dated 18.10.2013 passed by the learned Special Judge, Mandi, in Sessions Trial No. 11/2010, whereby he convicted and sentenced the appellant to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 50,000/- for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ''Act''). In default of payment of fine, the appellant was further to undergo imprisonment for one year.

The story of the prosecution is that on 08.01.2010 Inspector Madan Mohan (PW-7) the then SI/SHO, Police Station, BSL Colony, Sundernagar alongwith HC Satya Prakash (PW-3), constable Chet Ram (PW-4), HC Girdhari Lal and HC Rajinder Kumar proceeded from Police Station on patrolling duty in a government vehicle at about 3.30 a.m. At about 4.00 a.m., when they were present at Naresh Chowk, Sundernagar, the appellant came from Dhanotu side and was carrying a rucksack on his right shoulder and on seeing police party he started running back, but was apprehended on suspicion. The search of the bag was conducted and Charas was recovered from the bag which was weighed and found to be about one kilogram.

The Charas so recovered was put in a cloth parcel and sealed with 10 seals of impression ''A'' and was taken into possession vide memo Ex. PW-3/A. NCB form in triplicate Ex. PW-3/B was filled in and seal impression was also affixed on the NCB form and specimen of the seal used Ex. PW-3/C was taken separately on a piece of cloth. Rukka Ex. PW-4/A was prepared and sent to the Police Station through constable Chet Ram on receipt of which FIR Ex. PW-5/A came to be recorded at Police Station, BSL Colony, Sundernagar by HC Durga Dass (PW-5). Spot map Ex. PW-7/A was prepared by Inspector Madan Mohan (PW-7) and appellant was arrested. The parcel containing contraband alongwith seals, NCB form and seizure memo were deposited with head constable Durga Dass (PW-5) the then MHC by Inspector Madan Mohan, who made an entry in the ''Malkhana'' register, an abstract whereof is Ex. PW-5/B.

On 10.01.2010, the parcel containing contraband alongwith sample parcel, seizure memo, sample seals and NCB form were forwarded to FSL, Junga through HHC Jai Pal (PW-6) vide RC Ex. PW-5/C. As per the report of FSL, Junga, Ex. PW-8/A, the parcel on analysis was found to be containing extract of cannabis and sample of Charas. Special report Ex. PW-1/A was prepared by Inspector Madan Mohan (PW-7) which was forwarded to Dy. S.P., Sundernagar, through constable Chet Ram (PW-4). The statements of the witnesses were recorded as per their version by PW-7 and SI Trilok Chand (PW-8).

On conclusion of the investigation, charge-sheet was submitted against the appellant and after supplying copy of the same, charges were framed against him.

The prosecution in support of its case examined 8 witnesses and thereafter the statement of accused was recorded under Section 313 Cr.P.C. in which the appellant denied the case of the prosecution in its entirety. The plea taken by the appellant was that he was innocent and had been falsely implicated in the instant case. However, no defence evidence had been adduced by the appellant in order to substantiate or corroborate his defence plea.

The learned Special Judge after evaluating the evidence convicted the appellant as aforesaid against which conviction and sentence, the appellant has filed the present appeal.

I have heard learned counsel for the parties and have gone through the records of the case.

Shri Anoop Chitkara, Advocate, assisted by Ms. Divya Sood, Advocate, has vehemently argued that apart from various infirmities, illegalities and contradictions, the entire case of the prosecution is based on interested witnesses, who are none other than the departmental witnesses. No cogent reason or explanation has been given by the prosecution for not associating the independent witnesses. There are contradictions, embellishments and improvements in the statements of the material prosecution witnesses which go to show that the occurrence had not at all taken place.

On the other hand, Mr. Virender Kumar Verma, learned Additional Advocate General, has vehemently argued that the mere fact that all the witnesses associated in this case happened to be departmental witnesses would not in any manner affect the veracity or truthfulness of the prosecution case, particularly, when it is established on record that the appellant was apprehended at about 4.00 a.m. and that too in extreme winter conditions on 08.01.2010. He further argued that the so-called contradictions, embellishments and improvements if at all are there, the same are of very minor nature which will have no effect on the prosecution case.

It is more than settled and cannot otherwise be disputed that where all the witnesses are from the police party, their depositions must be subjected to strict scrutiny. However, as far as possible the corroboration of the evidence on material particulars could be sought, but there can be no apprehension to the effect that a policeman cannot be a witness or that his deposition cannot be relied upon.

In Rohtash Kumar Vs. State of Haryana, (2013) 6 AD 580 : (2013) CriLJ 3183 : (2013) 8 JT 181 : (2013) 3 RCR(Criminal) 355 : (2013) 7 SCALE 472 : (2013) 14 SCC 434 , the issue regarding police officials as witnesses was succinctly dealt with in the following manner:--

"35. The term witness, means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in the court, or otherwise. In Pradeep Narayan Madgonkar etc. etc. Vs. State of Maharashtra, AIR 1995 SC 1930 : (1995) CriLJ 3213 : (1995) 7 JT 350 : (1995) 3 SCALE 408 : (1995) 4 SCC 255 : (1995) 2 UJ 192 this Court examined the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Court therein held that the same must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belonged to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars, should be sought. (See also Paras Ram Vs. State of Haryana, AIR 1993 SC 1212 : AIR 1992 SC 1212 : (1993) CriLJ 416 : (1992) 2 SCALE 864 : (1992) 4 SCC 662 : (1992) 2 SCR 55 Supp , Balbir Singh Vs. State of Punjab, (1995) 3 Crimes 516 : (1995) 3 SCC 472 Supp : (1995) 2 UJ 696(1) , Kalpnath Rai Vs. State (through CBI), AIR 1998 SC 201 : (1998) CriLJ 369 : (1997) 9 JT 18 : (1997) 6 SCALE 689 : (1997) 8 SCC 732 , M. Prabhulal Vs. The Assistant Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311 : (2003) CriLJ 4996 : (2003) 89 ECC 697 : (2003) 2 JT 459 Supp : (2003) 7 SCALE 649 : (2003) 8 SCC 449 : (2003) 3 SCR 958 Supp : (2003) AIRSCW 4975 : (2003) 7 Supreme 61 and Ravindran @ John Vs. The Superintendent of Customs, (2007) CriLJ 3414 : (2007) 7 JT 47 : (2007) 7 SCALE 153 : (2007) 6 SCC 410 .)"

Thus, a witness is normally considered to be independent, unless he springs from source which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon."

Thereafter similar issue again came up before the Hon''ble Supreme Court in Gian Chand and Others Vs. State of Haryana, AIR 2013 SC 3395 : (2013) CriLJ 4058 : (2013) 4 JCC 137 : (2013) 10 JT 515 : (2013) 3 RCR(Criminal) 916 : (2013) 9 SCALE 544 : (2013) 14 SCC 420 , wherein it was observed as under:--

"31. The next question for consideration does arise as to whether it is necessary to examine an independent witness and further as to whether a case can be seen with doubt where all the witnesses are from the Police Department.

In Rohtash Kumar Vs. State of Haryana, (2013) 6 AD 580 : (2013) CriLJ 3183 : (2013) 8 JT 181 : (2013) 3 RCR(Criminal) 355 : (2013) 7 SCALE 472 : (2013) 14 SCC 434 this Court considered the issue at length and after placing reliance upon its earlier judgments came to the conclusion that where all witnesses are from the Police Department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought. The Court held as under:

"Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there cannot be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon."

(See also Paras Ram Vs. State of Haryana, AIR 1993 SC 1212 : AIR 1992 SC 1212 : (1993) CriLJ 416 : (1992) 2 SCALE 864 : (1992) 4 SCC 662 : (1992) 2 SCR 55 Supp , Balbir Singh Vs. State, (1996) 7 AD 349 : (2000) CriLJ 169 : (1996) 4 Crimes 131 : (1996) 9 JT 158 : (1996) 7 SCALE 450 : (1996) 11 SCC 139 : (1996) 7 SCR 50 Supp , Akmal Ahmad Vs. State of Delhi, AIR 1999 SC 1315 : (1999) CriLJ 2041 : (1999) 2 Crimes 12 : (1999) 2 JT 388 : (1999) 2 SCALE 234 : (1999) 3 SCC 337 : (1999) 2 SCR 160 : (1999) AIRSCW 1008 : (1999) 3 Supreme 151 , M. Prabhulal Vs. The Assistant Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311 : (2003) CriLJ 4996 : (2003) 89 ECC 697 : (2003) 2 JT 459 Supp : (2003) 7 SCALE 649 : (2003) 8 SCC 449 : (2003) 3 SCR 958 Supp : (2003) AIRSCW 4975 : (2003) 7 Supreme 61 and Ravindran @ John Vs. The Superintendent of Customs, (2007) CriLJ 3414 : (2007) 7 JT 47 : (2007) 7 SCALE 153 : (2007) 6 SCC 410 .)

In State, Govt. of NCT of Delhi Vs. Sunil and Another, (2001) CriLJ 504 : (2000) 3 JT 267 Supp : (2000) 7 SCALE 692 : (2000) 5 SCR 144 Supp this Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that: (SCC p. 662, para 21)

"21....it is an archaic notion that actions of the police officer should be approached with initial distrust. ...At any rate, the court cannot [begin] with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around."

The wise principle of presumption, which is also recognized by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or though other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

In Appabhai v. State of Gujarat 1988 Supp SCC 241 this Court dealt with the issue of non-examining the independent witnesses and held as under: (SCC pp. 245-46, para 11)

"11. ... the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties."

The principle of law laid down hereinabove is fully applicable to the facts of the present case. Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants."

In view of the aforesaid exposition of law, it can safely be concluded that merely because all the prosecution witnesses are officials or police witnesses would not in itself cast a doubt on the prosecution story.

The learned counsel for the appellant would then argue that the police had conducted the entire proceedings in the Police Station which is proved by the fact that there are two major contradictions which have crept up in the case set up by the prosecution. These contradictions could have come only if the procedure was not conducted at the alleged spot. He in particular drew my attention to the statement of PW-7 Inspector Madan Mohan, who was the SHO and Investigating Officer and has stated that "I was having a traditional scale. I was having weights of 500 grams to 1 kg". Whereas, PW-4 constable Chet Ram in statement has stated that "I.O. was having electronic scale which was functional with cell". Not only this, PW-7 has further stated that "the cloth was cut and sewed by my officials on the spot and prepared the parcel Ex. P-1". However, later on this witness then states that "it is correct to suggest that Ex. P-1 is stitched with sewing machine on two sides".

It is evident that there is discrepancy not only in the statements of PW-7 and PW-4 when it relates to the weighing machine, but there is also contradiction in the statement of PW-7 himself with regard to mode of stitching of the case property before it was sealed at the spot.

Though the learned Additional Advocate General would put up a brave front to claim that such discrepancies are only minor in nature, but I am of the considered opinion that there is major discrepancy and contradiction between the statement of one witness and the other which not only creates a grave suspicion regarding the involvement of the appellant in the offence but also makes his presence doubtful at the place of occurrence.

There is no evidence available on the record which may suggest that the policy party was carrying a sewing machine at the spot and insofar as weighing machines are concerned, the statements of PW-4 and PW-7 are irreconcilable thereby causing a serious doubt on the entire prosecution story. The story set up by the prosecution not only becomes suspicious but also untrustworthy.

Shri Verma would contend that since the appellant has not set up a specific plea in his defence and has further adduced no evidence, therefore, he is presumed to be guilty. This plea has been raised simply to be rejected as it is well settled that the burden of proving the offence rests solely on the prosecution and it cannot be discharged from its burden of establishing the case beyond all reasonable doubt.

The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of law in respect of assessing the evidence in criminal cases. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The accused has a profound right not to be convicted of an offence which is not established by the evidential standard of proof "beyond reasonable doubt".

In view of the aforesaid discussion, I feel that it is unsafe to convict the appellant in the teeth of major contradictions and embellishments in the statements of prosecution witnesses as have been noticed above. Accordingly the appeal is allowed and the judgment dated 18.10.2013 passed by the learned Special Judge, Mandi, in Sessions Trial No. 11/2010, whereby he convicted and sentenced the appellant to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 50,000/- for the commission of offence under the Act, with default clause, is set aside and the appellant is acquitted of the charges and is ordered to be set free forthwith.

Since the appellant is in jail, the Registry is directed to prepare release warrants. Bail bonds, if any, are discharged.