State of Himachal Pradesh vs Dhani Ram

Sanjay Karol, J.—Assailing the judgment dated 4.4.2008, passed by learned Addl. Sessions Judge, Solan, District Solan, H.P., in Sessions Trial No. 21-S/7 of 2007, titled as State of H.P. vs. Dhani Ram, whereby respondent-accused stands acquitted, 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 4.1.2007 HC-Ram Parkash (PW-12) alongwith HC-Ashwani Kumar (PW-1), C-Ramesh Kumar (PW-10), C-Chunni Lal (PW-3) and C-Rakesh Kumar (PW-4) was on patrol duty at Paoghati. At about 5.15 p.m., they noticed the accused come from Batal Ghati side. Seeing the police party, he got frightened, hence on suspicion, apprehended. Suspecting that he may be carrying some contraband substance, after apprising him of his legal right of being searched in accordance with law vide memo (Ext. PW-2/A), accused, who consented to be searched by the police party vide memo (Ext. PW-2/B), was searched. From the jacket worn by him, charas in the shape of sticks and balls was recovered, which on weighment was found to be of 150 grams. Two samples of 25 grams each were drawn from the recovered contraband and sealed with seal impression-H. Remaining bulk parcel was also sealed with the very same seal. NCB forms (Ext. PW-8/B) in triplicate were filled on the spot. Ruka (Ext. PW-4/A) sent through C-Rakesh Kumar (PW-4), led to registration of F.I.R. No. 4 of 2007, dated 4.1.2007 (Ext. PW-4/B), at Police Station Arki, Distt. Solan, against the accused under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Case property was entrusted to ASI Pradeep Kumar (PW-8), who after affixing three seals of seal impression-A, on each of the parcels, deposited the same with MHC Ramesh Chand (PW-6). Sealed sample was taken by Constable Pyare Lal (PW-7) to the State Forensic Science Laboratory, Junga and report of the chemical analyst (Ext. PW-13/A) 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.

Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which he did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined thirteen witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offences. Hence, the present appeal by the State.

We have heard Mr. B.S. Parmar and Mr. Ashok Chaudhary, learned Addl. Advocate Generals assisted by Mr. Vikram Thakur, Dy. A.G. on behalf of the State as also Mr. Vijay Sharma, learned 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 essential ingredients so required to constitute the charged offences.

In Prandas Vs. The State, , 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 - AIR 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." "

In the instant case we find that Om Parkash (PW-2), an independent witness, has not supported the prosecution case at all. He was declared hostile and extensively cross-examined, but nothing fruitful could be elicited from his testimony. Witness states that he was travelling in his vehicle, which was stopped by the police, who informed that contraband substance stood recovered from one person. He denies conduct of any search operation in his presence. He does not even identify the person present on the spot to be the accused.

It is a settled proposition of law that merely because a witness has turned hostile, his entire 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. But in the instant case there is nothing, worthy of credence, in favour of the prosecution. Hence two views have emerged on record.

It is also 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, ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, ; and Aher Raja Khima v. State of Saurashtra, AIR 1956]."

Apex Court in Tahir Vs. State (Delhi), , 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."

It is 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., ; Allarakha K. Mansuri Vs. State of Gujarat, ; Raghunath and Ram Kishan and Others Vs. State of Haryana and Others, ; State of Uttar Pradesh Vs. Ram Veer Singh and Others, ; S. Rama Krishna Vs. S. Rami Reddy (D) by his LRs. and Others, ; Sambhaji Hindurao Deshmukh and Others Vs. State of Maharashtra, ; Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, ; Perla Somasekhara Reddy and Others Vs. State of A.P. rep. by Public Prosecutor, ; and Ram Singh @ Chhaju Vs. State of Himachal Pradesh, .

In AIR 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, , 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, , 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)

In view of the aforesaid statement of law, we shall now examine the testimony of police officials.

As to whether naaka was set up by the police party itself is in doubt. Const. Chuni Lal (PW-3) does not even remember the number of vehicles stopped on the spot. Const. Rakesh Kumar is not visible in the photographs clicked on the spot, as is so admitted by him. That apart from where weighing scale was arranged remains a mystery. Further Const. Rakesh Kumar (PW-4) states that after getting the F.I.R. registered, he reached the spot at about 9.00 p.m. and prior thereto all proceedings stood completed. He is categorical that no other proceeding was conducted thereafter which means that the accused already stood arrested. Consequently number of the F.I.R., so recorded on the document was not entered on the spot but in the police station. This itself renders the prosecution story to be doubtful. Also HC-Ramesh Chand (PW-6) admits that F.I.R. was immediately not sent to the concerned Magistrate. We find that there is delay of five days which remains unexplained.

Ajay Sharma (PW-9) states that scale and weights were taken from his shop by Const. Ramesh Kumar who is absolutely silent about the same. The witness seems to have been introduced later on. Further, we find that no weights of 25 grams were taken from the witness. If that were so, then how is it that samples of 25 grams were drawn. The weighing scale was not electronic. It was an ordinary scale used by a grocer.

We do not find prosecution to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence with regard to the recovery of contraband substance from the conscious possession of the accused. Contradictions in the statements of the police officials are glaring, material and relevant totally shaking the edifice of the prosecution story. Testimony of police officials, uninspiring in confidence, does not prove the prosecution case beyond reasonable doubt.

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 the 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 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., , since 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 interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.