State of Himachal Pradesh vs Harish Kumar

Sanjay Karol, J.—Assailing the judgment dated 14.10.2009, passed by learned Sessions Judge, Solan, H.P., Camp at Nalagarh, in Case No. 6-NL/7 of 2008, titled as State of H.P. versus Harish Kumar, 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 9.10.2007, SI/SHO Raj Kumar (PW-11) along with police party comprising HC-Neelam Kumar, Const. Mohan Singh, Const. Balwant Singh (PW-1) and Const. Balwinder Singh were on patrol duty when at about 8.25 p.m., near excise office Nalagarh, accused came on a motorcycle. Seeing the police party, accused tried to flee away but on suspicion apprehended. By associating two independent witnesses namely Sh. Bir Chand (PW-9) and Sh. Rakesh Kumar (PW-10), accused after being informed of his statutory right, was searched. A polythene packet, kept beneath the seat of the motorcycle, containing 200 grams of charas was recovered from his possession. Two samples of 25 grams each were drawn and sealed with seal impression-B. Bulk parcel was also sealed with the very same seal impression. Ruka (Ext. PW-1/C) was prepared and sent through constable Balwant Singh (PW-1), on the basis of which F.I.R. No. 265/2007, dated 9.10.2007 (Ext. PW-6/A), was registered at Police Station Nalagarh, 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). Accused was arrested. The contraband substance alongwith NCB forms was handed over to MHC-Vishesh Kumar (PW-3). Sealed sample was sent for chemical analysis to the State Forensic Science Laboratory at Junga and report of the chemical analyst (Ext. PX) taken on record. 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 eleven 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. V.S. Chauhan, learned Addl. Advocate Generals assisted by Mr. Vikram Thakur and Mr. Puneet Rajta, Dy. A.Gs., on behalf of the State as also Mr. Suneet Goel, 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 independent witnesses namely Bir Chand (PW-9) and Rakesh Kumar (PW-10), have not supported the prosecution case at all. They were declared hostile and extensively cross-examined, but nothing fruitful could be elicited from their statements.

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, ; 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."

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

In Court, ASI Raj Kumar (PW-11) does state that he effected recovery of the contraband substance from the possession of the accused, which was kept under the seat of the motorcycle driven by him. The same was recovered and seized in the presence of independent witnesses as also in the presence of police officials. On first brush, his testimony appears to be convincing. But, however, close scrutiny thereof only reveals, it not to be so. We find his testimony to be rendered doubtful, if not falsified, through the version of HC-Vishesh Kumar (PW-3). According to HC-Vishesh Kumar (PW-3), ASI Raj Kumar (PW-11) deposited the case property with him at about 11.45 p.m. This was on 9th October, 2007. But ASI Raj Kumar (PW-11) states that next day he produced the case property before the Judicial Magistrate 1st class, Nalagarh, who issued certificate (Ext. Pw-3/C). HC-Vishesh Kumar (PW-3) admits that there is overwriting in column No. 3 of document Ext. PW-3/A. To us it appears that the record is tampered with. Significantly, entry made in the case diary of entrustment of sealed sample to Const. Gurdev Singh has not been produced in court. Not only that, where were the scale and weights brought from, has not been explained by the police. Const. Balwant Singh (PW-1) only states that they were lying in the kit carried by the Investigating Officer which version is not so categorically deposed by ASI Raj Kumar (PW-11). None of the witnesses states that weights of 25 grams were available in the kit.

Not only that, Const. Balwant Singh (PW-1) admits that police station and market place is just at a distance of 50 yards from the place where recovery was effected from the accused. Why no independent witness from the locality was associated, has not been explained. In fact, Const. Balwant Singh does not even remember the address of independent witnesses so associated by the police party, who are not residents of the area.

Trial Court has rightly observed that the documents appear to have been prepared on the spot in one go and version of police official, of having gone to the police station at 9.30 p.m., does not appear to be true. Number of F.I.R. does not appear to have been filled up later on.

There is yet another missing link in the chain of events. Constable Krishan Kumar who allegedly took the sample to the laboratory has not been examined in court. Whether the sample was kept in safe custody and not tampered with, cannot be said to have been proved on record. There is no justification for his non examination. Also trial Court rightly observed that from the report (Ext. D-2), sealed sample analysed was P-1 and not S/1 which in fact was the case property. Thus, even by way of link evidence, prosecution case cannot be said to be have proved on record.

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.