State of Himachal Pradesh vs Rakesh Kumar

Sanjay Karol, J.—Assailing the judgment dated 21.2.2008, passed by the learned Addl. Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No. 4-N/7 of 2004, titled as State of H.P. vs. Rakesh Kumar @ Bobby, 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 7.7.2003, police party headed by SI-Lekh Ram (PW-11) comprising of Constables Jagat Singh (PW-3) and Ranjit Singh (PW-4) were on patrolling duty. They got information of trafficking of contraband substance, information whereof was sent to the superior officers. At about 8.15 p.m. when they reached near Rest House via Nahan Bazar, accused came from the side of Delhi Gate. Seeing the police party, accused got perplexed and tried to run away. He was apprehended. Independent witnesses Sh. Ramzan (PW-1) and Sh. Tarsem (not examined in court) were associated by the police for checking. On suspicion that accused was carrying contraband substance he was given an option of being searched vide memo (Ext. PW-1/A). From the person of the accused i.e. pocket of the trouser, a polythene packet containing charas was recovered. On the asking of PW-11, constable Jagat Singh (PW-3) brought scale and weights from the shop of Mohd. Islam (PW-2). Upon weighment charas was found to be 180 grams. Two samples 25 grams each were drawn and sealed in two separate empty packets. Samples as also bulk parcel were sealed with seal impression-L and taken into possession vide recovery memo (Ext. PW-1/C) witnessed by Ramzan (PW-1) and Tarsem. Specimen of the seal was also retained. Ruka (Ext. PW-4/A) was taken by constable Ranjit Singh (PW-4) on the basis of which F.I.R. No. 133/03, dated 7.7.2003 (Ext. PW-10/A) was registered at Police Station Nahan, Distt. Sirmaur, H.P. under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) against the accused. With the completion of necessary formalities on the spot, including filling up of NCB form, in triplicate, accused was arrested. SI-Lekh Ram (PW-11) deposited the case property with SI-Daulat Ram (PW-6) the Addl. S.H.O. Police Station Nahan who in turn resealed the contraband substance with seal impression ''DR'' and handed it over to MHC-Babu Ram (PW-5). Entry was made in the maalkhana register (Ext. PW-5/A). Sealed sample was sent through HC-Khajan Singh (PW-9) for chemical analysis to C.T.L. Kandaghat and report (Ext. PW-8/A) taken on record by the police. Superior officer was informed of the proceedings vide special report (Ext. PW-7/A) received by ASI-Sucha Singh (PW-7). Investigation revealed, complicity of the accused in the alleged crime, hence 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 u/s 313 Cr. P.C. was also recorded, in which he pleaded innocence and false implication. No evidence in defence was led by the accused.

After trial, accused stands acquitted. Hence, the present appeal.

We have heard Mr. Ashok Chaudhary, learned Addl. Advocate General, on behalf of the State as also Mr. Deepak Kaushal, 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 one of the independent witnesses namely Ramzan (PW-1) has not supported the prosecution case at all and was declared hostile. Despite his extensively cross-examination nothing fruitful could be elicited from his statement.

Prosecution wants us to believe through the testimonies of police officials (PW-3, PW-4 and PW-11) that despite independent witness to recovery, Ramzan (PW-1), not having supported the prosecution, its case stands proved beyond reasonable doubt.

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.

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 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 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."

At this juncture, it be observed that prosecution has not examined other independent witness Tarsem, who was given up for having been won over by the accused. Now, there is nothing on record to even prima facie establish such fact. Presence of independent witnesses on the spot appears to be extremely doubtful.

In Foreshore Cooperative Housing Society Limited, Bombay Vs. Nivara Hakk Suraksha Samiti, Bombay and Others, , the apex Court held that dropping a witness on the specious plea that he was won over without laying the foundation therefor is generally to be frowned upon. But each case has to be considered on its separate facts.

That apart, we find that there is major flaw in the prosecution case and that being non compliance of mandatory provisions of Section 50 of the Act. Investigating Officer SI-Lekh Ram (PW-11) states that he had given an option to the accused of being searched by a Magistrate or a Gazetted Officer. The option is not at all in accordance with Section 50 of the Act which mandates that the accused should be informed that he has a right to be searched before a Gazetted Officer, Magistrate or a Police Officer.

A Constitution Bench of the Apex Court in State of Punjab Vs. Baldev Singh, etc. etc., , has clearly held that the accused has a right to be made aware of his right to get searched before a Magistrate or a Gazetted Officer. Having regard to the Miranda clause as enunciated by the Supreme Court of the United States of America in Miranda v. Arizona [ 384 US 436], the Constitution Bench held that, although, such communication itself may not necessarily be made in writing but as far as possible such communication should be made in the presence of some independent and respectable persons witnessing the arrest and search.

It was thereafter held as follows:

"57 On the basis of the reasoning and discussion above, the following conclusions arise:

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or Magistrate would cause prejudice to an accused."

(emphasis supplied)

A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat 2007 (1) SCC 433 noticed the aforementioned dicta laid by the Constitution Bench in Baldev Singh (Supra) and in no uncertain terms opined that the accused must be told of his right to be searched before a gazetted officer or a Magistrate.

Thereafter, the Apex Court in Man Bahadur Vs. State of H.P., again followed the aforesaid judgments and held that not only the consent of the accused should be taken but the accused must also be informed of his right to get himself searched in the presence of the Magistrate.

This Court in Ashok Kumar versus State of H.P. Latest HLJ 2009 (HP) 557 has clearly held that if the consent memo does not show that the accused was informed that he had a right to be searched before a Magistrate or a Gazetted Officer the search is not in conformity with Section 50 of the Act.

In view of the law laid down, the accused must be informed about his right also, and since this was admittedly not done, there is violation of Section 50 of the Act.

The very fact that accused was apprehended on the spot while police party was on patrol duty itself cannot be said to have been proved on record beyond reasonable doubt. Except for ocular version of Const. Jagat Singh (PW-3), Const. Ranjit Singh (PW-4) and SI-Lekh Ram (PW-11) there is nothing on record to establish the factum of police party having left the police station on 7.7.2003 at 4.30 p.m. We find there is variation, bordering the level of contradiction even with regard to the place where accused was nabbed. Whether accused was nabbed between the temple and the gate of the rest house itself is in doubt.

Having perused the testimony of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to the effect that accused was found in conscious and exclusive possession of 180 grams of charas, by leading clear, cogent, convincing and reliable material on record. It cannot be said that the findings returned by the Court below are not borne out from record, perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence.

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.