State of Himachal Pradesh vs Sher Singh

Sanjay Karol, J.—Assailing the judgment dated 27.6.2008, passed by learned Special Judge, Kullu, H.P., in Sessions Trial No. 73 of 2005, titled as State of H.P. v. Sher Singh @ Sheru, 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 15.1.2005, police party comprising Const. Amar Singh (PW-1) and HHC-Amar Singh, headed by ASI Lekh Ram (PW-2) was present at Shara Mor. At about 8.00 a.m., seeing the police party, accused who was coming from Sainj side got perplexed, hence on suspicion apprehended. Suspecting that he may be carrying some contraband substance, endeavour was made by the police party to associate independent witnesses for carrying out search operation. But since none were available, after associating Constable Amar Singh (PW-1) and HHC-Amar Singh (not examined in court), accused who was informed of his statutory right and whose consent was obtained, was searched. From the rucksack (Ext. P-2) so carried by the accused, charas in the shape of sticks and chapattis was recovered which upon weighment was found to be 800 grams. Two samples of 25 grams each were drawn and each sealed with three seals of seal impression-T. The remaining bulk parcel was also sealed with the very same seal impression. NCB forms (Ext. PW-2/A) was filled on the spot. Ruka (Ext. PW-2/B) was prepared and sent through constable Amar Singh (PW-1) to the police station, on the basis of which F.I.R. No. 7/2005, dated 15.1.2005 (Ext. PW-3/A), was registered by HC-Hari Singh (PW-3), at Police Station Banjar, Distt. Kullu, against the accused under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), where after file was taken back to the spot and accused arrested. With the completion of necessary investigation on the spot, case property was produced before SI-Dorje Ram (PW-6) who resealed the same with seal impression-H and deposited the same with MHC-Hari Singh (PW-3). Constable Pawan Kumar (PW-4) took the sample to the C.T.L. Kandaghat and obtained report of the chemical analyst (Ext. PA). 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 six 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. In defence, accused examined one witness.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. 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. G.R. Palsra, 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 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, no independent witness was associated by the Investigating Officer (PW-2) before carrying out search and seizure operations on the spot.

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, ."

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.

Prosecution case primarily rests upon the testimonies of Const. Amar Singh (PW-1) and ASI Lekh Ram (PW-2). Conjoint reading of the same only reveals that prosecution has not been able to establish its case beyond reasonable doubt. We do not find their version of having endeavoured to associate independent witnesses to be truthful. Accused was apprehended in the early hours of 15.1.2005. According to ASI Lekh Ram, HHC-Amar Singh was sent to search for witnesses towards Larji side and Const. Amar Singh was sent to search for witnesses towards Biyali side. Both returned empty handed as none was available. Now HHC-Amar Singh has not been examined in Court and ASI Lekh Ram himself admits Electricity Project Colony to be just at a distance of 100 mts. from Larji. Witness also admits that in Biyali there are 2 - 3 shops and a stone crusher set up by a company known as Gammon India. The accused was apprehended at 8.00 a.m. at Shara Mor. As per version of Const. Amar Singh who contradicts the version of ASI Lekh Ram, vehicular traffic was seen on the spot. Const. Amar Singh further states that no witness was available at Biyali. But to us it appears that he did not go there at all, for even according to him, distance was 5 kms, thus he could not have returned within 15 minutes, as is so disclosed by him, covering 10 kms. on foot. In fact, witness categorically states that he did not visit any place to bring local witnesses. Thus, he not only contradicts himself but also contradicts ASI Lekh Ram. It has also come on record through the testimony of these two witnesses that Parbati Power Project was at a short distance from the place where accused was allegedly apprehended. Also construction work on the road was in progress. As such, prosecution version of making an endeavour of associating independent witnesses cannot be said to be true.

Const. Amar Singh present at the time of sealing of samples categorically states that three samples of seal impression-T were drawn on pieces of cloth which version stands belied and contradicted by ASI Lekh Ram, according to whom there were four samples. Further ASI Lekh Ram handed over the case property alongwith seal impressions to SI Dorje Ram. MHC-Hari Singh states that SI-Dorje Ram only deposited three sealed parcels alongwith NCB forms in triplicate and only one sample of seal impression-T and one sample of seal impression-H were handed. Significantly, what is produced in the Court, with which witnesses were confronted, was only one sample of seal impression- T and H. Version of ASI Lekh Ram is also contradicted by Dorje Ram according to whom only one sample of seal impression-T stood deposited.

Thus, contradictions in the testimonies of the witnesses are material, rendering prosecution case to be doubtful. It is in this backdrop, failure of the prosecution to have associated independent witnesses acquires greater significance. Veracity of the police officials in the given facts and circumstances cannot be said to be unimpeachable and fully uninspiring in confidence. There is serious doubt about the manner in which investigation was conducted which cannot be said to be fair. Also the impression of the seal was not placed on record which further renders prosecution case to be doubtful.

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.