State of Himachal Pradesh vs Anil Kumar

Sanjay Karol, J—Assailing the judgment dated 17.12.2007, passed by Additional Sessions Judge (Special Judge), Mandi, H.P., in Sessions Trial No. 36 of 2003, titled as State Versus Anil Kumar, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 14.05.2003, police party headed by Kesar Singh (P.W.1) comprising of Nanak Chand (P.W.2) and Gian Chand (not examined) were on patrol duty near Victoria Bridge, Mandi Town. At about 2.35 PM, they saw accused coming on a motorcycle. The motorcycle was stopped and checked. Suspecting that accused may be carrying some contraband substance, in the presence of independent witnesses Nagender Kumar (P.W.3) and Sanjeev Sharma (P.W.4), he was searched and from the dickey of the vehicle, contraband substance was recovered. Scales were brought from the shop of Kewal Krishan (P.W.5) and upon weighment, the contraband substance i.e. charas was found to be 20 grams and opium 100 grams. One sample of 10 grams of charas and two samples of 10 grams each of opium were drawn. Samples as well as bulk parcel were sealed with seal having impression ''T''. NCB form (Ex. PW.9/A) filled up on the spot. Rukka (Ex. PW.11/C) taken by Gian Chand (not examined) to the Police Station, on the basis of which FIR No. 195 of 2003, dated 14.05.2003 (Ex. PW.9/B) was registered at Police Station, Sadar, Mandi, H.P., under the provisions of Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act), against the accused. Accused was arrested. On production of accused and the contraband substance, SHO K.D. Sharma (P.W.9) resealed the contraband substance and deposited it with MHC Baldev Singh (P.W.10). Samples were carried by Param Dev (P.W.7) to CTL Kandaghat for chemical analysis and report (Ex. PX) was obtained by the police. 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.

The accused was charged for having committed an offence punishable under the provisions of Sections 18 and 20 of the NDPS Act, to which he did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as eleven witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took defence of innocence. Two witnesses were examined by the accused in his defence.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard M/s. Ashok Chaudhary, V.S. Chauhan, learned Addl. AGs., assisted by Mr. J.S. Guleria, learned Asstt. AG., on behalf of the State as also Mr. Ajay Thakur, 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 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.

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.

In Prandas Vs. 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 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 and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , 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 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." "

The defence of the accused of false implication to some an extent stands probablized through the testimony of Abhishek Mandyal (DW-1) and Deepak Guleria (DW-2). Evidently the accused was riding the motorcycle without number, which resulted into verbal tiff with the police.

In the instant case, we find that not only independent witnesses Nagender Kumar (P.W.3) and Sanjeev Sharma (P.W.4), in whose presence search and seizure operations were carried out, but also police official Nanak Chand (P.W.2) have not supported the prosecution case. Through the testimonies of independent witnesses Nagender Kumar and Sanjeev Sharma, we find no recovery of contraband substance was effected in their presence, in the manner in which the prosecution wants the Court to believe. Through their testimonies a version has emerged which renders the genesis of the prosecution case to be doubtful.

It is also well established principle of law that (i) the appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more probable; (ii) while dealing with a judgment of acquittal, the appellate court must consider entire evidence on record, so as to arrive at a finding as to whether views of the trial court are perverse or otherwise unsustainable; (iii) the appellate court is entitled to consider whether in arriving at a finding of fact, trial Court failed to take into consideration any admissible fact; and (iv) the trial Court failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. (See: Balak Ram Vs. State of U.P., AIR 1974 SC 2165 : (1974) CriLJ 1486 : (1975) 3 SCC 219 : (1974) SCC(Cri) 837 : (1975) 1 SCR 753 ; Allarakha K. Mansuri Vs. State of Gujarat, AIR 2002 SC 1051 : (2002) CriLJ 1489 : (2002) 1 Crimes 322 : (2002) 2 JT 63 : (2002) 2 SCALE 131 : (2002) 3 SCC 57 : (2002) 1 SCR 1011 : (2002) 1 UJ 419 : (2002) AIRSCW 781 : (2002) 1 Supreme 622 ; Raghunath and Ram Kishan and Others Vs. State of Haryana and Others, AIR 2003 SC 165 : (2003) CriLJ 401 : (2002) 9 JT 556 : (2003) 1 SCC 398 ; State of Uttar Pradesh Vs. Ram Veer Singh and Others, AIR 2007 SC 3075 : (2007) 10 SCALE 545 : (2007) 13 SCC 102 : (2007) 10 SCR 689 : (2007) AIRSCW 5553 : (2007) 6 Supreme 164 ; S. Rama Krishna Vs. S. Rami Reddy (D) by his LRs. and Others, AIR 2008 SC 2066 : (2008) CriLJ 2625 : (2008) 4 JT 593 : (2008) 150 PLR 782 : (2008) 6 SCALE 450 : (2008) 5 SCC 535 : (2008) AIRSCW 2824 : (2009) AIRSCW 687 : (2008) 8 Supreme 525 ; Sambhaji Hindurao Deshmukh and Others Vs. State of Maharashtra, (2008) 1 JT 569 : (2008) 1 SCALE 499 : (2008) 11 SCC 186 : (2008) AIRSCW 823 : (2008) 1 Supreme 317 ; Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, (2010) CriLJ 433 : (2009) 2 DMC 677 : (2009) 13 JT 144 : (2009) 13 SCALE 143 : (2009) 10 SCC 206 : (2009) 14 SCR 1081 : (2009) 9 UJ 4289 ; Perla Somasekhara Reddy and Others Vs. State of A.P. rep. by Public Prosecutor, (2009) 8 JT 105 : (2009) 7 SCALE 115 : (2009) 16 SCC 98 : (2009) 8 SCR 145 ; and Ram Singh @ Chhaju Vs. State of Himachal Pradesh, (2010) CLT 594 : (2010) CriLJ 1655 : (2010) 1 Crimes 120 : (2010) 1 JT 666 : (2010) 1 SCALE 669 : (2010) 2 SCC 445 : (2010) 2 SCR 95 : (2010) 2 UJ 1097 ).

InSheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , the Privy Council held that:

"...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...."

In Chandrappa and Others Vs. State of Karnataka, (2007) CriLJ 2136 : (2007) 3 JT 316 : (2007) 3 SCALE 90 : (2007) 4 SCC 415 : (2007) 2 SCR 630 , the apex Court observed as under:

"(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

In State of U.P. Vs. Banne @ Baijnath and Others, (2009) CriLJ 2234 : (2009) 3 JT 552 : (2009) 3 SCALE 35 : (2009) 4 SCC 271 , the apex Court gave illustrations of certain circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court, which principle, in our considered view, would squarely apply to the judgment under review by us. The circumstances include; (i) The High Court''s decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court''s conclusions are contrary to evidence and documents on record; iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court''s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) Apex Court must always give proper weight and consideration to the findings of the High Court; and (vi) the apex Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. The apex Court further held that "Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court''s acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference."

(Emphasis supplied).

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 eyewitness 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.

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 public, it can only bring down the prestige of police administration.

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.

"[See: Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, AIR 2012 SC 1292 : (2012) CriLJ 1991 : (2012) 3 JCC 1714 : (2012) 3 SCALE 414 : (2012) 4 SCC 722 : (2012) AIRSCW 1994 ; Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, AIR 2012 SC 1292 : (2012) CriLJ 1991 : (2012) 3 JCC 1714 : (2012) 3 SCALE 414 : (2012) 4 SCC 722 : (2012) AIRSCW 1994 ; Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, AIR 2007 SC 3106 : (2007) 10 JT 421 : (2007) 10 SCALE 358 : (2007) 7 SCC 625 : (2007) AIRSCW 5589 : (2007) 6 Supreme 49 ; and Aher Raja Khima v. State of Saurashtra, AIR 1956]."

Apex Court in Tahir Vs. State (Delhi), (1996) 3 AD 206 : AIR 1996 SC 3079 : (1996) 1 Crimes 222 : (1996) 3 SCALE 41 : (1996) 7 SCC 498 : (1996) 3 SCC 338 : (1996) 3 SCR 757 , 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."

We find that even Kewal Krishan (P.W.5) from whose shop scales were brought has not supported the prosecution. All the independent witnesses despite their extensive cross-examination have not supported the prosecution and nothing emerges from the record, establishing falsehood of their version or they having deposed in favour of the accused, for any consideration.

Kesar Singh (P.W.1) and Karam Singh (P.W.11) want the Court to believe that contraband substance was recovered from the conscious possession of the accused. Recovery was effected from the dickey of the motorcycle. It be only observed that even testimony of these officials is uninspiring in confidence. There are material contradictions, discrepancies and improvements in their statements. The original seal has not been proved on record. This was absolutely necessary in view of testimony of Param Dev (P.W.7) and MHC Baldev Singh (P.W.10), who are not sure as to whether the case property remained in safe custody or not and as to whether it was not tampered with during its transit.

There is no entry in the daily diary with regard to the receipt of the Rukka in the Police Station, it appears that documents were prepared at the Police Station, which version stands fortified from the version of Sanjeev Sharma (P.W.4), according to whom, police may prepare and sign all the documents at the Police Station.

Even with regard to receipt of the special report (Ex. PW.6/A) Naresh Kumar (P.W.6) admits that no date with regard to receipt thereof is entered in the register.

Sanjeev Sharma (P.W.4) states that Charas was recovered from the pocket of the shirt worn by the accused, which version stands belied and contradicted by Kesar Singh (P.W.1) and Nanak Chand (P.W.2), according to whom it was recovered from the back pocket of the pants worn by the accused. Further, Kesar Singh and Nanak Chand state that opium was recovered from the dickey of the motorcycle, whereas according to Karam Singh (P.W.11) it was placed near the battery of the motorcycle. The witness is categorical about this fact.

We further find that there is non-compliance of Section 50 of the Act. Neither is there any memo nor any reference thereof in the Rukka or Special Report. Also, Kesar Singh and Nanak Chand are silent about this fact, which only renders the version of the Investigating Officer to be doubtful.

We further find that the FSL Report (Ex. PX) does not state the percentage of the opium, as is so statutorily required under the provisions of Section 2(xv) of the Act. This also renders the prosecution case to be fatal.

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 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.

The Court below, in our considered view, has 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 or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

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 Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., AIR 2010 SC 566 : (2010) CLT 222 : (2010) CriLJ 861 : (2009) 14 JT 6 : (2009) 13 SCALE 584 : (2010) 1 SCC 94 : (2009) 15 SCR 616 : (2009) 10 UJ 4781 , 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 application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.