State of Himachal Pradesh vs Virender Kumar

Sanjay Karol, J.—Assailing the judgment dated 10.07.2009, passed by Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P., in Sessions Case No. 1-P/2009, titled as State of Himachal Pradesh Versus Virender Kumar alias Banttu, 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 20.12.2008, police party headed by SI Baldev Singh (PW-8) was on patrol duty at Purwa. Police officials came to the shop of the accused to have tea. They saw one person hurriedly leaving the shop. On suspicion, shop was searched and from the bag kept near the counter, charas was recovered. No independent witness could be associated, as such, charas, after associating police officials Ajay Bhushan (PW-1) and ASI Brahm Dass as witnesses, was recovered. Upon weighment it was found to be of 1.600 grams. Two samples of 25 grams each were drawn and sealed with ten seals having impression ''P''. Bulk parcel was also sealed in the same manner. NCB forms were filled up in triplicate. Special report (Ex.PW-1/D) was sent to the superior officer. Rukka (Ex.PW-6/A) was sent through constable Mohinder Singh (PW-5) to Police Station, Palampur, on the basis of which FIR No. 349 of 2008, dated 20.12.2008 (Ex.PW-6/B) was registered, under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act), against the accused. Accused was arrested on the spot. Case property, including the sample seal were kept by SI Baldev Singh in Police Post, Bhawarna. On the next day, he produced the same before SHO Police Station, Palampur, SI Ashok Kumar (PW-6), who resealed the same with seal having impression ''V''. Case property was then deposited with MHC Joginder Singh (PW-4). Sample (Ex.P-2), NCB forms and sample of seal were sent to the FSL, Junga, through constable Harnam Singh. Report (Ex.PA), was taken on record 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.

Accused was charged for having committed an offence punishable under the provisions of Section 20 of NDPS Act, to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as eight witnesses. Statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took the following defence:-

"I am innocent. The packet of charas was snatched from the boy who ran away that too out side my shop."

No evidence in defence was led.

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, V.S. Chauhan, learned Addl. AGs., assisted by Mr. Vikram Thakur, learned Dy. AG., on behalf of the State as also Mr. Rajesh Mandhotra, 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, no independent witnesses were associated by the police in carrying out search and seizure operations. Ajay Bhushan (PW-1) states that he went to search for independent witnesses and despite having requested 20-30 persons to join investigation, none were willing to do so. Now, who were those persons? Why no action, in accordance with law, was taken against them? has not been explained. After all recovery was effected from the shop in the bazaar. Public representatives or Government officials could have been called. Hence, his version, uninspiring in confidence, renders the prosecution case of having attempted to associate independent witnesses to be doubtful.

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

Prosecution case primarily rests upon the testimony of Constable Ajay Bhushan (PW-1), HHC Mohinder Singh (PW-5) and Investigating Officer SI Baldev Singh (PW-8). Having minutely examined the same, we find there are major contradictions as also variations, rendering their testimonies to be shaky, unbelievable, uninspiring in confidence and not worthy of credence.

As per version of Ajay Bhushan, recovery memo (Ex. PW-1/A) was signed by him and ASI Virender Kumar. But then there is nothing on record to establish presence of such person on the spot independently or as member of the raiding party. The document appears to have been prepared at the Police Station. Also, perusal of recovery memo (Ex. PW-1/A) reveals ASI Braham Dass to be signatory, who was not examined in Court. Prosecution found his testimony would have been repetitive. But his examination would have only corroborated the shaky version of Constable Ajay Bhushan.

On the question of recovery of contraband substance, Ajay Bhushan states that at the time when police party entered the shop, accused was standing near the counter, holding the plastic bag in his hand, which version stands belied by Mohinder Singh, according to whom packet was recovered from a place under the counter. Investigating Officer Baldev Singh has yet another version to state. According to him, when the Police party entered the shop, accused was not at the counter, but was seen coming towards the counter. Thus, contradiction being major renders the prosecution case of recovery of the contraband substance in the manner it wants the Court to believe, to be doubtful.

Significantly, no endeavour was made to catch the person who after seeing the police party ran away from the shop.

Also there is contradiction regarding production of the accused and the case property before the SHO, SI Ashok Kumar (PW-6), states that the case property and the accused were produced before him on 21.12.2008, however memo (Ex. PW-6/D) records the date to be 20.12.2008.

Thus, testimonies of police officials, as discussed herein above, full of contradiction, being unreliable and lacking in confidence, also probabilize the defence of the accused.

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 was found in conscious and exclusive possession of Charas.

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.