State of Himachal Pradesh vs Tulsi Ram

Sanjay Karol, J.—The moot point, which arises for consideration in the present appeal, is as to whether in the absence of any creditable evidence, establishing accused Tulsi Ram to be in exclusive ownership or possession of the fields, over which opium poppy was being illegally cultivated, can he be convicted on the basis of testimony of police officials, namely Constable Guddu Ram (PW-8), Constable Ajay Kumar (PW-9) and SI Mitter Dev (PW-18), particularly when independent witnesses Mohar Singh (PW-1) has not supported the prosecution case.

State has appealed against the judgment dated 2.9.2009 of the learned Special Judge, Fast Track Court, Kullu, Himachal Pradesh, passed in Sessions Trial No. 4 of 2009, titled as State v. Tulsi Ram, challenging the acquittal of respondent Tulsi Ram (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

It is the case of prosecution that on 14.5.2008, SI Mitter Dev (PW-18) accompanied by Constable Guddu Ram (PW-8), Constable Laxman Dass (not examined) and Constable Ajay (PW-9) was on patrol duty at Barehnga, in relation to detection of crime. At about 10.30 a.m., they saw opium poppy cultivated in several fields. After associating, independent witnesses Mohar Chand (PW-1) and Dhani Ram (PW-16), Mitter Dev carried out seizure operations. Two samples, each containing 10 plants, were removed and sealed in separate parcels. 25 opium poppy plants were also sealed separately as a bulk parcel. The sample and the bulk parcel were sealed with seal impression ''C''. NCB form (Ex. PQ) was filled up in triplicate. Prior thereto, the fields were got demarcated from Patwari Halqua, namely Keshav Ram (PW-2), who found the fields to be owned and possessed by accused Tulsi Ram. Ruka (Ex. PM) was taken by Constable Guddu Ram, on the basis of which FIR No. 60 dated 14.5.2008 (Ex. PL), under the provisions of Section 18 of the NDPS Act, was registered at Police Station, Banjar. Special Report (Ex. PT) was prepared and sent to the Superior Officer. Accused was arrested. Case property was handed over to the MHC, who after making entry in the Malkhana Register, kept the same in the Malkhana. The sealed sample was taken by Constable Puran Chand for chemical analysis to the FSL, Junga and report (Ex. PA/M) taken on record, which revealed the contraband substance to be opium poppy. With the completion of investigation, which 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 18 of the NDPS Act, to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 19 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence.

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. Vikram Thakur, learned Deputy Advocate General, on behalf of the State as also Mr. Naveen K. Bhardwaj, 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." "

We find that independent witness Mohar Singh (PW-1) has not supported the prosecution case at all. Despite his extensive cross-examination, nothing fruitful could be elicited from his testimony.

Another independent witness Dhani Ram was not examined, only for the reason that he had been worn over by the accused. Record does not reveal such fact to have been substantiated by the prosecution.

In Gurminej Singh and others Vs. State of Punjab, , 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.

In State of Rajasthan Vs. Om Prakash, , the Apex Court held as under:-

"14. In State of H.P. v. Gian Chand [2000(1) SCC 71] Justice Lahoti speaking for the Bench observed that the Court has first to assess the trustworthy intention of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could have been examined but were not examined."

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 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, ; 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."

In view of the aforesaid statement of law, we shall now examine the testimonies of police officials present on the spot.

When we examine the testimonies of Guddu Ram (PW-8), Constable Ajay Kumar (PW-9) and Mitter Dev (PW-18), we find that police officials have no prior intimation of cultivation of opium poppy in the area. Police had gone on patrol duty, in connection with detection of crime. However, there is nothing on record to establish the Ravangi (departure) of the police to Barehnga, in connection with the same. Genesis of the prosecution story, to our mind, does not inspire confidence at all.

What further needs to be examined is as to whether prosecution has been able to establish, by leading clear, cogent and convincing material, cultivation of opium poppy by the accused in the fields owned and possessed by him.

Mitter Dev states that for ascertaining ownership and possession, he got the demarcation conducted on the spot from the Halqua Patwari. However, Keshav Ram (PW-2) contradicts such version by stating that he did not conduct the demarcation on the spot. His version that the said Khasra No. 836 belonged to Tulsi Ram is uninspiring in confidence, for he does not know either the adjoining khasra numbers or the owners thereof. Who called the Patwari, is left to be guessed. Also Patwari admits that Tulsi Ram, i.e. the accused, is neither the owner nor in possession of Khasra No. 836, over which opium was cultivated. Who authorized him to carry out demarcation is also not clear. Investigating Officer also did not enquire as to whether the land was joint or exclusively owned by the accused.

We find from the testimony of HHC Ajay Kumar that there were 10-15 houses in village Barengha. Who are residents of those houses? Why were they not associated in the investigation? Why were they not examined in court? has not been explained.

Thus, in our considered view, it cannot be said that prosecution has been able to establish, beyond reasonable doubt, the fact that the accused exclusively owned or possessed the fields, comprising in Khasra No. 836, over which opium poppy stood cultivated by him.

Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused had cultivated opium poppy in the fields, comprising Khasra No. 904 at Phati Sari-kot, exclusive owned and/or possessed by him.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.

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., , 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 ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

Appeal stands disposed of, so also pending application(s), if any.