State of Himachal Pradesh vs Nand Lal

Sanjay Karol, J.—Assailing the judgment dated 21.02.2010, passed by Special Judge-II, Solan, District Solan, H.P., in Sessions Trial No. 5-S/7 of 2009, titled as State of H.P. Versus Nand Lal, 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 26.12.2008, ASI Shanti Swarup (PW. 11) was on patrol duty alongwith police officials Sohan Lal (PW. 2), Parkash Chand (PW. 4), Naresh Kumar (PW. 8) and Rakesh (not examined). At about 2.00 PM, Shanti Swarup received information that accused Nand Lal was selling charas from a shop, situated at village Battal. He accordingly prepared reasons of belief (Ex. PS) and sent it to the office of Superintendent of Police, Solan through constable Parkash Chand (PW. 4). He constituted a raiding party, comprising of independent witnesses Jagdish (PW. 1) and Gafur alias Punu (PW. 9). Accused who was informed of his right, vide memo (Ex. PD) consented to be searched by the police party (memo Ex. PA). From the shop of the accused, charas in the shape of sticks was recovered, which upon weighment was found to be of 250 grams. Two samples of 25 grams each were drawn and sealed with seal impression ''A''. Sample as also remaining bulk parcel was sealed with the very same seal and taken into possession vide memo (Ex. PG). NCB form (Ex. PW. 11/A) was filled up on the spot. Special report (Ex. PT) was sent to the superior Officer. Rukka (Ex. PL) was sent through Naresh Kumar (PW. 8), on the basis of which FIR No. 103 of 2008, dated 26.12.2008 (Ex. PM) was registered by Rajinder Singh (PW. 3) at Police Station, Arki, District Solan, H.P., under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act), against the accused. Case property was entrusted to MHC Rajinder Kumar (PW. 3), who in turn, sent the sample for chemical analysis to the Forensic Science Laboratory, Junga, through Naresh Kumar (PW. 8). Report of the Chemical Analyst (Ex. PW. 11/E) 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 Section 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 plea of innocence and false implication. In defence, Sant Ram (DW-1) was examined by the accused.

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

We have heard M/s. B.S. Parmar, Ashok Chaudhary, learned Addl. AGs., assisted by M/s. Vikram Thakur and Puneet Rajta, learned Dy. AGs., on behalf of the State as also Mr. Ashwani Pathak, 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, , 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 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 the instant case, independent witnesses Jagdish (PW. 1) and Gafur alias Punu (PW. 9) have not supported the prosecution case at all. They were declared hostile and extensively cross-examined, yet nothing fruitful could be elicited from their testimony. The witnesses have denied being part of the raiding party or that charas was recovered in their presence.

Prosecution version of having recovered the contraband substance from the conscious possession of the accused in the presence of independent witnesses, thus stands falsified. There is nothing in their testimony which would reveal that the witnesses have deposed falsely. Thus view other than the one which prosecution wants us to believe has emerged on record.

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.

Significantly independent witnesses are not from the locality or village, where search and seizure operations were conducted by the police. Why two persons from the distant area were associated by the police for investigation, has not been explained by Shanti Swarup (PW. 11). From the testimony of police officials, constituting a raiding party, it has come on record that there were shops at Battal and independent witnesses were available. Yet for unexplained reasons, police did not associate anyone of them. It is not that accused was influential person; none from the locality had refused to associate themselves or police had any such apprehension.

We find there are major contradictions in the testimonies of police officials. According to Shanti Swarup (PW. 11), charas was recovered from the drawer. Whereas, according to Naresh Kumar (PW. 8), it was recovered below the cloth on the Moora (sitting pad). Thus there is major contradiction with regard to the place of recovery.

Also we find that seal used for sealing the case property has not been produced in Court, for Jagdish (PW. 1) categorically denies having received the same, belying the version of Shanti Swarup.

The genesis of prosecution story with regard to formation of police party having left the Police Station on patrol duty, itself is in doubt, for according to PW. 11, police party straightaway went to Battal Ghati from the Police Station and no vehicles were checked in between, which version stands belied by Parkash Chand (PW. 4), according to whom, 8-10 vehicles were checked. Further according to Shanti Swarup (PW. 11), he did not know accused from before nor was he familiar with the place of his shop. According to him, identity was disclosed by Jagdish (PW. 1), which fact stands belied by Jagdish himself. Also PW. 11 admits that no document qua receipt of seal was placed on the file. Witness also admits that numbers of sticks were not counted by him. Also he states that contraband substance was weighed with ordinary machine, document to which has also not been placed on record. Further we find that there is nothing on record to establish that shop, in question, belonged to the accused.

Thus the testimonies of police officers uninspiring in confidence is not worthy of credence. 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.