State of Himachal Pradesh vs Jai Singh

Sanjay Karol, J.—Assailing the judgment dated 01.03.2008, passed by Additional Sessions Judge (Special Judge), Fast Track Court, Kangra at Dharamshala, H.P., in Sessions Case No. 8-P/VII/08/Sessions Trial No. 8/08, titled as The State of Himachal Pradesh Versus Jai Singh, State has filed the present appeal under the provisions of Section 378(3) of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 01.08.2007, SI Megh Nath (PW.12) along with Parveen Kumar (PW.1), Manmohan Lal (PW.2) and Darshan Singh (PW.3) was on a patrol duty. At about 11.40 AM when they were present near Langa forest, they saw accused coming from an opposite side. Seeing the police party, accused ran away. He was carrying a bag on his back. On suspicion, accused was apprehended. Bag was searched from which a polythene packet (Ex.P5) containing charas (Ex.P6), in the shape of candles, was recovered. Also weapon ''Khukhri'' was recovered. Upon weighment charas was found to be 6 kilograms. Two samples each of 25 grams were drawn. Sample and the bulk parcel were sealed with four seals of seal impression ''T''. NCB forms, in triplicate, were filled up. ''Khukhri'' was also sealed. Contraband substance was seized vide memo (Ex.PW.1/A) in the presence of Head Constable Praveen Kumar (PW.1) and Gurbachan Singh (not examined). Darshan Singh (PW.3) took Rukka (Ex.PW.3/A), on the basis of which FIR No. 179/07 dated 01.08.2007 (Ex.PW.4/A) was registered at Police Station, Palampur, H.P., by MHC Ranjit Singh (PW.4) under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and Section 25 of the Indian Arms Act, against the accused. After registration of the FIR, file was taken by Darshan Singh who handed it over to Megh Nath, at bus-stand, Palampur. Accused was arrested. Megh Nath handed over the case property along with the NCB forms etc. to MHC Ranjit Singh (PW.4). Entry was made in the malkhana register (Ex.PW.12/D). Special report (Ex.PW.10/A) was sent to the office of Superintendent of Police. Prem Chand (PW.5) took sample from the MHC and deposited the same with the Forensic Science Laboratory, Kandaghat. Report (Ex.PA) which revealed the contraband substance to be charas was taken on record 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 Section 20 of the NDPS Act and Section 25 of the Indian Arms Act, to which he did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as twelve witnesses. Statement of the accused u/s 313 of the Code of Criminal Procedure was also recorded, in which he took up the following defence:-

"I am innocent in the case. I have already put my defence to the witnesses that the Charas was recovered from the rack of the bus at Bus Stand, Palampur which is not connected with me nor I knew about it. A false case has been foisted against me."

No evidence in defence has been led.

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

We have heard Mr. B.S. Parmar, learned Addl. Advocate General, on behalf of the State as also Mr. S.D. Gill, 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 offence.

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 no independent witness has been associated by the police.

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, ; Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, ; and Aher Raja Khima Vs. The State of Saurashtra, ].

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."

Prosecution case primarily rests upon the testimony of police officials Parveen Kumar (PW.1), Manmohan Lal (PW.2), Darshan Singh (PW.3) and Megh Nath (PW.12).

Megh Nath (PW.12) states that on 01.08.2007 at about 11.40 AM, when police party headed by him reached Langa forest, they saw the accused carrying a bag on his back. Seeing the police party accused ran away. However, he was apprehended at a distance of 50 meters in the forest. Since no independent witnesses were available, bag was checked from which charas was recovered. Upon weighment it was found to be 6 kilograms. Two samples of 25 grams each were drawn. Bulk parcel was sealed with seal of seal impression ''T'' (10 seals) as also samples were sealed with seal of seal impression ''T'' (4 seals). He states that he filled up the NCB forms (Ex.PW.12/A) in triplicate. Seal was handed over to SI Gurbachan Singh (not examined). Darshan Singh (PW.3) took Rukka (Ex.PW.3/A) to the Police Station and handed over the file to him at bus-stand, Palampur. This was, when police party was on their way back to the Police Station. He handed over the case property to Ranjit Singh (PW.4) and also got sent special report (Ex.PW.10/A) to the office of the Superintendent of Police. We do not find version of this witness to be inspiring in confidence at all. Firstly, Praveen Kumar (PW.1) contradicts his version of the accused being apprehended after covering a distance of 50 meters, as according to him it was after 50 steps. On first brush there appears to be no contradiction at all, but when viewed in totality one would find it renders the prosecution case to be absolutely doubtful, if not false with regard to the conduct of search and seizure operations on the spot. According to the witness, seal was handed over to Gurbachan Singh, who, for unexplainable reasons has not been examined in Court. Also sample seal was not produced in the Court. But what is important is a major contradiction with regard to the filling up of the NCB forms. According to this witness, Darshan Singh after registration of the FIR (Ex.PW.4/A), handed over the file to him at bus-stand, Palampur. This fact belies and contradicts his earlier version to the extent that he filled up the NCB form, in triplicate, on the spot. Noticeably in the NCB forms, number of the FIR is recorded. Now if NCB forms were filled in the jungle, then how is it that number of the FIR stands recorded therein, for it is not the case of prosecution that the Investigating Officer had been informed about the same in the jungle itself. Undisputedly, Langa jungle and Palampur bus-stand are distinct and distant places. Also we find the defence so taken by the accused, to some extent, having been probablized by this witness, who states that "it is incorrect that when some passengers were inside the bus, ASI went inside the bus took out the bag which was found containing charas. However, none claimed the bag. In correct that 7-8 passengers including the accused were taken to P.S. and were inquired there for long time. The passengers were being sent out when only 2-3 persons remained inside, the accused had protested and had oral altercation with ASI for his being detaining unnecessarily."

Prosecution wants us to believe that contraband substance was weighed with the scales which were kept in the I.O. kit. Now there is nothing on record to establish that any such kit was either issued or was in possession of the police officials. In fact, they had no business to carry the same as they had no prior knowledge of any drug trafficking. Even such fact renders the prosecution case of search and seizure operations to be doubtful.

According to the witnesses present on the spot (PW.1, PW.2, PW.3 and PW.12) accused ran downhill and threw a bag which contained charas and ''Khukhri''. He was apprehended and police party conducted proceedings on the roadside which fact is evident from the testimony of Manmohan Lal (PW.2). Now, why is it that police did not associate any independent witness for carrying out search and seizure operations, after all, charas was recovered during broad day light. Police could have conveniently carried the contraband substance to the nearest village or Police Post and carried out remaining operations there. Hence non association of independent witnesses also renders the prosecution case to be doubtful.

We find that even on link evidence prosecution case to be weak. In the malkhana register (Ex.PW.12/D), as is so admitted by Ranjit Singh (PW.4), no entry of deposit of NCB forms was made. Why so? has not been explained. Even in the Road Certificate (Ex.PW.5/A) there is no mention of the NCB forms as is so admitted by Subhash Chand (PW.8), who handed over the sample to Prem Chand (PW.5) for being taken to the Forensic Science Laboratory.

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 the police officials are glaring, material and relevant totally shaking the edifice of the prosecution story.

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., , 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.