State of Himachal Pradesh vs Lekh Raj

Sanjay Karol, J.—Assailing the judgment dated 26.7.2008, passed by learned Special Judge, Hamirpur, H.P. in Sessions Trial No. 2 of 2008, titled as State of H.P. versus Lekh Raj, 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 24.7.2007, Inspector Baldev Singh (PW-12) alongwith ASI Raj Singh (PW-1), HC-Raj Kumar (PW-6), HHC-Surjit Kumar (PW-8), Const. Suresh Kumar and HHC-Dhan Paul (PW-7) was on patrol duty at Bassi Tarkwari area. At about 5.40 p.m. when they reached near Shiv Temple, one person who was carrying a bag in his hand, on seeing the police party tried to flee away but was overpowered. He disclosed his name as Lekh Raj (accused). On suspicion that he may be carrying some contraband substance in his bag, after informing the accused of his statutory rights (memo Ext.PW-1/A), who consented to be searched by the police party, from the bag, contraband substance was recovered. HHC-Surjit Singh was deputed to bring scales and weights from the shop of Hem Raj (PW-2). Upon weighment the contraband substance so recovered was found to be 800 grams. Two samples of 25 grams each were drawn from the recovered contraband and samples as well as bulk parcel were sealed with seal impression-P. NCB forms in triplicate were filled up on the spot. Ruka (Ext.PW-12/A) sent through HHC-Surjit Kumar (PW-8), led to registration of F.I.R. No. 122/2007, dated 24.7.2007 (Ext. PW-4/A), at Police Station Bhoranj, Distt. Hamirpur, 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 and with the completion of necessary investigation on the spot, case property deposited with MHC-Kishore Chand (PW-4). Special report (Ext. PW-12/C) was sent to the superior officer. Sealed sample was sent for chemical analysis through HC-Tarlok Singh (PW-5) who deposited the same at the State Forensic Science Laboratory, Junga and report of chemical analyst (Ext. PW-12/D) 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 twelve 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. Accused examined one witness in defence.

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. 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." "

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 the instant case, trial court disbelieved the testimony of prosecution witnesses and primarily acquitted the accused on the ground of non-association of independent witnesses. Relevant findings are reproduced as under:--

"41. In the case in hand, no independent witnesses have been associated in the case by the Investigating Officer, though they could be easily produced, as is stated by PW-2, Hem Raj that there are 5-6 shops at a distance of about 100-200 meters from his shop. It is admitted by PW.6 HC Raj Kumar that there is a Karyana Shop at a distance of about 300 yards from the spot and there is also Navodaya School at a distance of 4 K.M. Thus, it was not impossible or difficult for the Investigating Officer to have associated independent witnesses in conducting the search of the accused. But, it has not been done. Therefore, it is to be seen, as to whether the statements of the official witnesses can be relied upon to lead to conviction of the accused in this case.

According to the prosecution case, the accused was apprehended near Julahu Mour and the time was about 5.45 P.M. on July 24, 2007. According to PW.6 HC Raj Kumar, Navodaya School is at a distance of about 4 K.M. from there. However, PW.7 HHC Dhan Paul states that the Navodaya School is at a distance of 1/2 K.M. from the spot. According to the statement of PW.12 Inspector Baldev Singh, the Navodaya School is at a distance of about 1 K.M. from the spot. Thus, there are three different versions of these witnesses about the place where the accused was allegedly apprehended. Therefore, such contradictions leave a serious doubt about the allegation of the prosecution as to whether the accused was actually apprehended, and if at all, where? This, itself, is a very serious circumstance going against the prosecution case.

Secondly, PW Hem Raj had brought the scale and weights of 500 grams, 200 grams, 100 grams and 50 grams to the spot. In this case, two samples of 25 grams each had been separated from the bulk. But since the I.O. did not have the weights of 25 gram on the spot, it is impossible to think as to how he could have separated two samples of 25 grams each on the spot. This, further brings the case of the prosecution within the pale of suspicion.

Thirdly, according to PW Dhan Paul, only he had gone to fetch the Scale and Weights. He does not say that HHC Surjit Singh had accompanied him, though said HHC Surjit Singh claims so. Thus, it also casts further doubt on the prosecution case as to whether any Scale and Weights were actually brought to the spot or the proceedings had taken place somewhere else. Thus, the statements of the official witnesses have made the prosecution case highly suspicious. This fact coupled with non-joining of independent witnesses, though could be available, lends support to the defence plea that actually, no charas was recovered from the possession of the accused for which I place reliance on the case of Sot Ram Vs. State of H.P., ."

Having perused the testimonies of prosecution witnesses, we are in agreement with the same.

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 eye-witness 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.

Hem Raj (PW-2) does state that police brought the scale and weights from his shop. But then he is not a witness to recovery of the contraband substance. Significantly recovery was effected not in the middle of night but during the day at about 5.40 p.m. The place was not isolated either. There is no explanation for not associating independent witnesses, especially when police, as is evident from the testimony of Baldev Singh (PW-12), suspected the accused of carrying some contraband substance. It is not a case of chance recovery. After all, his consent for search, under the provisions of the Act, was obtained. Now if scale and weights could have been brought from the shop of Hem Raj (PW-2), then why is it that he himself was not associated as an independent witness. After all his shop was just near the temple, where also shops of others were close by, as is so admitted by police officials. In fact, Raj Singh (PW-1) who was present on the spot as member of the police party could not state the reason why SHO Baldev Singh (PW-12) did not associate any independent witness. Version of PW-12, of not having noticed any person, whom he could associate as an independent witness, stands falsified from the fact that scale and weights were brought from the shop of Hem Raj (PW-2). Significantly, PW-12 categorically states that he had deputed HHC Surjit Singh to bring the scale and weights from the shop of Hem Raj. But then he admits of not knowing this person from before. Hence how could he direct HHC-Surjit Singh to go to the shop of Hem Raj remains unexplained. Further, PW-12 contradicts himself by deposing that primary school is just at a distance of 50 meters from the shop of Hem Raj. As to whether any traffic checking was done or not itself appears to be doubtful from the testimony of this witness, for he could not state as to how many vehicles were checked or passed by. After all he is the S.H.O. and was on patrol duty along with police officials. He ought to have remembered or made record of such fact. Absence thereof, only renders the genesis of the prosecution story to be doubtful.

HHC-Surjit Singh (PW-8) also admits that there are residential houses at a distance of 200 mts from the shop of Hem Raj. This witness reveals yet another fact, as according to him Hem Raj was also called on the spot. Now this totally knocks down the prosecution case.

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.