State of Himachal Pradesh vs Sunil Kumar

Sanjay Karol, J.—Assailing the judgment dated 12.01.2007, passed by Special Judge (I), Kangra at Dharmashala, H.P., in Sessions Case No. 57-K/VII/2005, titled as State Versus Sunil Kumar, 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 28.09.2004, at about 6.30 PM Inspector Sanjeev Chauhan (PW. 10) alongwith SI Mohinder Singh (PW. 9), ASI Ramesh Chand (PW. 6), HHC Hoshiar Singh (PW. 4) and HHC Kuldeep Singh (PW. 5), was on traffic checking duty. Scooter bearing No. HP-57-0449 driven by the accused was stopped and he was asked to show the registration papers of the vehicle. When accused tried to take out the documents from the dicky of the scooter, an envelope containing charas, in the shape of sticks fell down. Police associated independent witnesses Bir Singh (PW. 2) and Darshan Singh (PW. 3) and seized the contraband substance, after drawing two samples of 25 grams each. Samples as also remaining bulk parcel, total quantity of which was found to be 350 grams, were sealed with seal impression ''C'' and seized vide seizure memo (Ex. PW. 2/A). NCB forms were filled up in triplicate. Rukka (Ex. PW. 5/A) was sent to the Police Station, Kangra, on the basis of which FIR No. 301/04 dated 28.09.2004 (Ex. PW. 5/B) was registered against the accused, under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). Accused was arrested. Case property was entrusted to Suresh Kumar, who sent the sample for chemical analysis to the CTL, Kandaghat, through Constable Suram Singh (PW. 8). After obtaining report of the Chemical Analyst (Ex. PW. 4/B), 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 ten witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took the following defence:-

"I am innocent. The scooter No. HP-57-0419 is not owned by me nor I was driving the said scooter on the relevant day. No charas was recovered from me and this false case has been planted by the police against me."

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. A.G., assisted by Mr. Vikram Thakur, learned Dy. AG., and Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State as also Mr. Raghunandan Chaudhary, 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."

In the instant case, independent witnesses Bir Singh (PW. 2) and Darshan Kumar (PW. 3) have not supported the prosecution case at all. They were declared hostile. But we find despite extensive cross-examination nothing fruitful could be elicited from their testimonies. 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. In their unrebutted testimony they have deposed that on the behest of police they signed documents in their shop. No recovery was effected from the accused 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. Thus view other than the one which the prosecution wants the Court to believe, has emerged on record.

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 the 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 v. State of M.P., (2007) 7 SCC 625); 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."

When we examine the testimonies of police officials Hoshiar Singh (PW. 4), SI Mohinder Singh (PW. 9) and Inspector Sanjeev Chauhan (PW. 10), we find there are major contradictions which are fatal to the prosecution case. Testimonies of these officials, uninspiring in confidence, cannot be relied upon to convict the accused. It cannot be said that prosecution has been able to establish its case, beyond reasonable doubt.

The genesis of the prosecution story that police party left the Police Station for traffic checking duty, is itself in doubt, for there is nothing on record to establish such fact. Inspector Sanjeev Kumar (PW. 10) categorically admits that he has not produced any document to prove such fact. Why so? he does not explain. After all, particularly when independent witnesses did not support the prosecution, he ought to have established and proved the prosecution case, beyond reasonable doubt. Significantly scooter bearing No. HP-57-0449 is not owned by the accused. SI Mohinder Singh (PW. 9), who also conducted the investigation admits that he did not verify the factum of ownership thereof. Why so? has not been explained. It is also admitted that no case of theft was registered against the accused, in relation to the vehicle in question. There is also contradiction with regard to the duration for which vehicles were checked.

Further we find that case property in question was not resealed at Police Station either by Mohinder Singh (PW. 9) or by MHC Suresh Kumar (PW. 7), for it is not the case of prosecution that Sanjeev Chauhan (PW. 10), who was the SHO of the concerned Police Station directly entrusted the property to MHC. The possibility of sample being tampered with cannot be ruled out, particularly when seal, in question, with which sample was sealed was not produced in Court.

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.